By Maureen T. DeSimone

On Thursday, November 2, 2017, Google convinced a California Federal court that it should not have to remove a website from its search engine. The thing is, Google was trying to not have to follow a Canadian Supreme Court ruling on June 28, 2017, which ordered that Google remove the website from its search engine results, which is also known as delisting. The case involved a small Canadian tech company, Equustek Solutions, which claimed a distributor infringed on its Intellectual Property. In July of 2017, Google filed a new lawsuit seeking an injunction from the California Court against the enforcement of the Canadian ruling. Equustek Solutions chose not to fight against Google in the U.S. court.

The California Federal District judge found that the Canadian order violated Section 230 of the Communication Decency Act (“CDA”). Section 230 of the CDA immunizes Internet providers from liability from acts performed by third parties. The court declared that: “By forcing intermediaries to remove links to third-party material, the Canadian order undermines policy goals of Section 230 and threatens free speech on the global internet.”

The U.S. Court of Appeals for the Seventh Circuit, in Zeran v. America Online, Inc., explained that the purpose of the CDA’s protection to Internet service providers is to encourage and maintain not only online discourse, but also to encourage competition in the free market, free from federal and state regulation. Section 230 of the CDA was enacted in 1996. When it was adopted, the Internet was first developing and Congress was concerned that developing technology and innovation would be stifled if Internet Service Providers were subject to liability for third party postings. It seems that Section 230 of the CDA’s protections for Internet Service Providers is no longer necessary in today’s world. Since the CDA was first enacted in 1996, the need to encourage growth and development of Internet service providers no longer exists in the same way that it did at that time. It seems safe to say that the Internet is not going anywhere. Further, it seems unlikely that a tech giant such as Google would not be discouraged from further innovation and development as a result of delisting.

We’ve seen delisting before, in the European Union with respect to the ‘Right to Be Forgotten.’ The European Commission published the Proposal for a Regulation on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (“GDPR”) on January 1, 2012. The Right to be Forgotten is the right to have search engines delete links to posts created by third parties upon proof that these links serve no legitimate purpose other than to embarrass or even extort the subject. The posts will not be deleted, however, just delisted so they won’t show up in a Google or other search engine search. All search engines whether they are European companies or not are subject to this ruling and since the GDPR did not actually set up a process for removal, it actually left this burden on search engines. GDPR requires the search engines to set up their own system for requests for removal and criteria for removal, while still complying with the regulation. By issuing the GDPR the European Union made a bold statement saying that Individual Privacy Rights were more important than Freedom of Expression.

We don’t have the Right to Be Forgotten in the United States, but there is a more limited right provided by a California statute which went into effect on January 1, 2015. This CA statute gives children the right to delete posts on social media, but this only applies to posts that children made themselves and not to those made by third parties.   One could conclude, that the U.S. values Freedom of Speech over individual privacy.

Canada does not have the right to be forgotten at this time, but it has been said that the “doors were opened” so to speak after the decision in A.T. v., which involved a Romanian based website that downloaded thousands of Canadian judicial and tribunal decisions and demanded fees for their removal. These decisions are all public and accessible through the Canadian Legal Institute. Most decisions from the Canadian Legal Institute are not actually indexed in Google so they don’t typically get listed in searches. Since the Globe24H website was linked to Google these once hidden court cases now showed up on Google searches. When A.T. asked the website to remove the case, A.T. was informed that it would take 6 months to remove, but if A.T. paid for its removal it would be removed quickly. The Privacy Commissioner of Canada received dozens of complaints about the website and thus issued a report indicating that it violated Canadian privacy law. The court ruled that the website violated Canadian privacy law and it could be extended to a foreign site. The order required both the company to comply, but also was issued in a way that allowed the users to submit a request to Google for the removal of the offensive links from its searches. It is argued that the Canadian court created its own Right to Be Forgotten with this case.

It seems that the Canadian Supreme Court in the Equustek Solutions case applied the remedy for Right to Be Forgotten cases to enforce delisting in an Intellectual Property issue. This would have opened the floodgates to delisting just about anything, and recognizing this, Google filed the injunction. Google could have appealed in Canada, but Google was successful because it filed in the United States court with the argument that the Canadian Court’s order violated both Freedom of Speech and Section 230 of the CDA.   Google knew that it could only be successful in obtaining an injunction in the United States.

Additionally, it should be noted that Google is probably hoping to bring the U.S. order to Canada to persuade them on appeal. The Canadian court could however choose to disregard the U.S. order and impose sanctions on Google if they don’t comply.

Student Bio: Maureen is night student at Suffolk Law and expects to graduate in May 2018. She has a Certificate in Paralegal Studies from Suffolk University and a B.A. in English with a minor in French from Stonehill College. She has been working as a litigation paralegal since May 2010.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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