Free speech vs. copyright in Supreme Court battle between Google and B.C. firm

OTTAWA — Supreme Court of Canada justices challenged Google’s lawyers Tuesday for arguing that the company’s own free speech rights are being compromised by a B.C. injunction ordering it to delete material from its web searches.

The high court was hearing arguments in a case that pits the Internet giant against a British Columbia technology firm and highlights the ever-present tension between free speech and copyright infringement.

At issue is whether Canadian courts have the jurisdiction to make sweeping orders to block access to content on the Internet beyond Canada’s borders.

Google is challenging a 2015 ruling by the British Columbia Court of Appeal that ordered it to stop indexing or referencing websites linked to a company called Datalink Technologies Gateways.

The B.C. appeal court granted that injunction at the request of Equustek Solutions Inc., which won a judgment against Datalink for essentially stealing, copying and reselling industrial network interface hardware that it created.

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Burnaby-based Equustek wanted to stop Datalink from selling the hardware through various websites and turned to Google for help.

Initially, Google removed more than 300 URLs from search results on Google.ca, but more kept popping up, so Equustek sought — and won — the broader injunction that ordered Google to impose a worldwide ban.

Google fought back against the “worldwide order,” arguing that Canadian courts don’t have the legal authority to impose such an injunction.

Its written argument to the Supreme Court calls the injunction “an improper and unprecedented extension of Canadian jurisprudence.”

Google lawyer William McDowell was met by some tough questioning from the high court bench when he advanced that argument.

“Just looking at it from the public interest point of view and the public perception point of view, you really think the public is going to line up behind the right to distribute internationally illegal contraband?” Justice Rosalie Abella asked.

“What’s the harm to Google in preventing illegal activity in its wide distributive reach?”

McDowell said it’s one thing for Google to voluntarily remove material, but added: “It’s quite a different thing to be facing a coercive order of the court, which requires it to do that.”

Chief Justice Beverley McLachlin said she wasn’t yet persuaded that there was anything coercive about the injunction that had been brought against Google.

“Unless you persuade me further, I don’t understand that to be the case,” she told McDowell.

Equustek lawyer Robbie Fleming said there is no freedom of expression issue at play.

“The only purpose of the websites is to sell outlaw products,” he told the court, adding that court orders affecting intermediaries like Google are the only way to deal with “Internet outlaws.”

But Justice Malcolm Rowe challenged that argument. “Are you not, in effect, making Google a defendant without having a cause of action against them?”

Fleming said courts have the power to compel behaviour from non-parties to a lawsuit.

Google’s lawyers say if the court upholds a broad international injunction, it might inspire less democratic governments to seek binding court orders in Canada that are more intrusive.

That view is shared by the New York-based Human Rights Watch, which was granted intervener status in the case.

Human Rights Watch is joining a coalition of civil liberties groups, as well as 15 news organizations including Dow Jones, the Newspaper Association of America and The Associated Press. They argue the Canadian courts are overextending themselves and threatening free speech across the globe.

Equustek has the support of a coalition of Canadian publishers, authors, composers and filmmakers, as well as an international federation of film producers. They take exception with Google’s argument that it cannot be “deputized by a court to deindex a site.”

The issues in the case are part of a growing global trend of “intermediary liability” where companies such as Google are being pressed to take down harmful or illegal content, said Fen Hampson, a Canadian foreign affairs expert and author of “Look Who’s Watching,” a new book on the evolution of the Internet.

The European Court of Justice has upheld the “right to be forgotten,” which upholds the removal of defamatory or inaccurate personal information if it comes up in a search engine such as Google, Hampson said.

“In this case, Google (the intermediary) was asked by the B.C. court to deal with a copyright infringement issue, but the concept can be applied to other issues such as trademark disputes, defamation, hate speech, censorship or the protection of privacy.”

Mike Blanchfield, The Canadian Press