How a Supreme Court case in Canada could force Google to censor speech worldwide

Should Google remove content from its search results all around the world on the orders of a single foreign government? That’s the thorny question with broad free speech implications for Americans and political dissidents raised by a Supreme Court decision in Canada.

On Wednesday, Canada’s top court ruled that Google can be forced to delist search results worldwide to enforce the decisions of Canadian courts. The ruling stemmed from a case involving an intellectual-property dispute, with Canadian manufacturer Equustek Solutions claiming that another Canadian business, Datalink, was using Google to sell impostor products. Google removed hundreds of Datalink hyperlinks from its search results in Canada. But Equustek obtained a court order to compel Google to delete these listings not just from Canadian search results but from Google search everywhere in the world.

“The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global,” the Supreme Court wrote in its decision. If the injunction was only enforced in Canada, the Supreme Court said, people could still purchase Datalink products through websites outside the country, depriving Equustek of an effective remedy.

But by upholding this worldwide order, Google and free-speech organizations said the Supreme Court ruling could have far-reaching consequences for freedom of expression.

“Issuing an order that would cut off access to information for U.S. users would set a dangerous precedent for online speech,” the Electronic Frontier Foundation said in a statement Wednesday. “In essence, it would expand the power of any court in the world to edit the entire Internet, whether the targeted material or site is lawful in another country.”

Google has argued that a worldwide order forcing it to delist Datalink isn’t necessary or effective, and that such a move should have been blocked because of free speech concerns. But the high court disagreed.

“This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that were in violation of several court orders,” the court wrote in its decision. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”

The Canadian Civil Liberties Association partially agreed with the decision. Rob De Luca, a staff lawyer with the CCLA, said the Supreme Court was careful to limit the language of its ruling so as not to infringe upon free speech rights, although the CCLA would have liked to see ever more robust speech protections. De Luca added that future disputes with more direct connections to free speech will probably test the precedent set by this case. “Given this decision, you could very well see a corporation saying, ‘U.S. law is too friendly to the freedom of speech concerns of Google, so I am going to bring that case in a jurisdiction with fewer freedom of speech protections,’ ” he said.

That could lead to a kind of race to the bottom, experts said, where corporations or governments seek to impose restrictive censorship laws around the globe, limiting what people can see and experience online.

“We are carefully reviewing the Court’s findings and evaluating our next steps,” a Google spokesman said.

As in the United States, Google cannot appeal the Supreme Court decision. The high court did say, however, that Google could petition the British Columbia courts, where the case originated, to modify the order, if Google thinks that it will be forced to violate the laws of another country. Google has not yet done so, the Supreme Court said.