By Hugh Stephens — 3 Jun 2018
Google is at it again. According to press reports in the New Zealand Herald, Google refused to comply with a New Zealand court order to suppress details and remove content related to a local murder trial because, according to a representative of Google NZ, “Google LLC, was a separate legal entity incorporated in the US, meaning New Zealand’s courts and laws held no power over it.” Tell that to the Supreme Court of Canada.
The New Zealand case in question concerned a retrial of accused murderer Zarn Tarapata, whose original 2015 conviction was overturned early this year. New Zealand publications were barred by court order from publishing details during the retrial in order to protect Tarapata’s right to a fair trial, but Google refused to comply, citing non-applicability of New Zealand law to its search engine as well as its role as simply an index of content published by others. The details are now public, as the court order has been lifted after Tarapata was found “not guilty” on retrial on the basis of insanity. The issue, however, is whether Google has the right to ignore the law in New Zealand, Canada, the EU or any other jurisdiction simply because its corporate headquarters are in Silicon Valley. The British Columbia Supreme Court and the Supreme Court of Canada think not, as has clearly been demonstrated in the Google/Equustek case.
The details are bit complicated but at its core the issue was whether Google could or would block global search results in an intellectual property (IP) case where Canadian company A (Datalink) had violated the IP rights of Canadian company B (Equustek) and, in defiance of a Canadian court order, had continued selling the infringing goods over the internet from outside Canada. To enforce the court order, Equustek requested that Google de-index Datalink’s website from its global search results. Google refused on several grounds, not because it could not do so, but because it did not want to do so. It argued that the Canadian order had extraterritorial reach and claimed that the decision would open the door to court rulings in other countries that could infringe freedom of expression, including the First Amendment of the U.S. Constitution. Both the B.C. court and the Supreme Court of Canada dismissed Google’s arguments, outlining grounds for asserting jurisdiction (essentially that Google did business in Canada) and refuting claims that advertising the sale of counterfeit goods was a freedom of speech issue.
The Supreme Court did, however, offer Google a possible out;
“If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application.”
Google quickly grasped that straw and petitioned the District Court of Northern California to issue a temporary injunction blocking the enforceability of the Canadian order in the United States. This move was unopposed because the plaintiffs had not sought to have the injunction enforced in the U.S. What they had sought, and obtained, was a ruling in Canada that Google’s global search results (available in Canada) would be de-indexed with regard to the offending website. While the California District Court dutifully complied with Google’s request to block the enforceability of the Canadian order in the U.S., Google was still required to block Datalink on its global search results lest it be found in criminal contempt of the B.C. court order. So while the U.S. injunction did not in practical terms lift the de-indexing order, there was a “method to Google’s madness”.
Armed with the U.S. temporary injunction, they returned to British Columbia arguing that the original de-indexing order should be varied because they now had proof that it violated U.S. law and the U.S. Constitution. The B.C. court was unimpressed. The Court stated that, “The U.S. decision does not establish that the injunction requires Google to violate American law”. As I wrote in an earlier blog, nothing in U.S. law, or any other law, requires Google to list any particular website (unless the website has secured a court order mandating listing). Google is free to index or de-index any site as long as it complies with competition law. The Equustek case will shortly resume and Google may eventually get relief from the de-indexing order but not because the courts in Canada have no jurisdiction, as Google is claiming is the case in New Zealand, but because of other elements of the case.
Canada is not the only country where Google is finding deaf ears for its argument that it has no requirement to answer to national law because it operates in multiple jurisdictions, and is headquartered in the U.S. In both France and the U.K. there are cases involving the “right to be forgotten”, requiring Google to de-index search results, and in Germany a court has ruled that Google cannot hide behind its algorithm as an excuse for producing perverse search results that linked a particular individual to the category of “incurable sex offender”. Google’s arrogance, high-handedness and preferred modus operandi of “permissionless innovation” and “seeking forgiveness after rather than permission beforehand” is wearing thin on legislators and the public.
What does this mean for New Zealand? That is up New Zealanders, but I note that a new Privacy Bill is under review at a time when Facebook has blotted its copybook on protection of personal data. Now with Google ducking any responsibility to comply with New Zealand law, as well-known tech commentator Paul Brislen has noted, this is “sure to play a large role in shaping the way new laws are introduced”.
New Zealand’s Digital Services Minister Clare Curran has pointed out that;
“Facebook, Google are not the gentle giants they make out to be, they are the collectors of vast amounts of data that is used with sometimes dubious permissions to conduct extraordinary experiments on our whole civilisation. In our own country (they’re) sparking disruption of our internal media sectors with almost no accountability.”
Combine this with Google’s known penchant for avoiding tax by booking its revenues offshore (according to one well-documented report, Google paid less than NZD400,000 in tax in 2017 on New Zealand ad bookings of around NZD342 million), and it’s not hard to figure out why the glow is off the “Big Tech” apple these days, whether it is in the realm of paying fair tax or complying with local law.
On the issue of legal compliance, the lesson from Canada is that countries and courts can successfully stand up to Google to ensure it respects the law and assumes responsibility for the dominant role that it plays in cyberspace.
© Hugh Stephens, 2018
This article first appeared on Hugh Stephens’ blog: Google “Thumbs its Nose” at New Zealand’s Courts: Kiwis Should Look to Canada for a Precedent
Hugh Stephens has more than 35 years of government and business experience in the Asia-Pacific region. Based in Victoria, BC, Canada, he is currently Vice Chair of the Canadian Committee on Pacific Economic Cooperation (CANCPEC), Senior Fellow at the Asia Pacific Foundation of Canada, Executive Fellow at the School of Public Policy at the University of Calgary, and an associate faculty member in the School of Business at Royal Roads University, Victoria, BC. Before returning to Canada in December 2009, he was Senior Vice President (Public Policy) for Asia-Pacific for Time Warner for almost a decade, located at the company’s regional headquarters in Hong Kong. In this capacity he managed Time Warner’s public policy program in Asia Pacific for Turner Broadcasting, HBO, Warner Bros, Time Inc. and AOL.