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How the Supreme Court can avoid turning the Web into a Wild West

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at michaelgeist.ca.

Last week, the Supreme Court of Canada heard arguments in a case that strikes at the heart of law in the online world. Google v. Equustek Solutions stems from claims by Equustek, a Canadian company, that another company used its trade secrets to create a competing product and engaged in misleading tactics to trick users into purchasing it.

After struggling to get the offending company's website taken offline, Equustek obtained a British Columbia court order requiring Google to remove the site from its search index. Google voluntarily removed search results for the site from Google.ca search results, but was unwilling to block the sites from its worldwide index. The B.C. court affirmed that the order applied on an international basis, however, issuing what amounted to global takedown order.

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The Supreme Court hearing – which attracted intervenors such as the Wikimedia Foundation, Electronic Frontier Foundation, as well as the music and movie industry associations – focused on issues such as the effectiveness of a Google-targeted order, where the responsibility for identifying conflicting laws should lie, and the fairness of bringing an innocent third-party such as Google into the legal fray.

Yet, largely missing from the discussion was an attempt to grapple with perhaps the biggest question raised by the case: In a seemingly borderless Internet, how do courts foster respect for legal rules and avoid vesting enormous power in the hands of Internet intermediaries who may ultimately find themselves picking and choosing among competing laws?

The effectiveness of a Google-targeted order and the burden of identifying potential global legal conflicts generated spirited debate before the court but no obvious answers. While Google noted that focusing on a single search engine ignored numerous alternatives and failed to remove the offending content from the Internet, Equustek emphasized Google's unparalleled online influence and its ability to limit public awareness of any website.

The question of responsibility presented a similarly difficult choice. Google and some intervenors argued that it should fall to claimants to assure a court that an extraterritorial order would not violate the laws of other countries. Equustek responded by pointing to Google's economic power, arguing that it was fairer for a company with billions in revenue that does business around the world to bear the burden of identifying legal conflicts.

While those issues seemed to leave the court divided, it barely addressed the elephant in the room, namely the dangers of ceding decision-making on whether to abide by the law to global Internet giants such as Google and Facebook. Indeed, if the Supreme Court of Canada upholds the validity of a global takedown order without consideration of the impact in other countries, it will effectively leave it to Google to decide whether to comply with Canadian law.

Google seems unlikely to ignore a Canadian court order, but what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow.

Courts seeking to strike the right balance face a difficult challenge because, if they are unable to assert jurisdiction, the Internet risks becoming a proverbial "Wild West" with no applicable law. If every court asserts jurisdiction, however, the online world becomes over-regulated with a myriad of potentially conflicting laws.

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The temptation for courts will be to assert jurisdiction over online activities and leave it to the parties to sort out potential conflicts. But when it comes to Internet jurisdiction, exercising restraint and limiting the scope of court orders is likely to increase global respect for the law and the effectiveness of judicial decisions.

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