Canadian court forces Google to remove search results worldwide, as fears of “memory hole” grow

South Park Canada

A Canadian court took the unprecedented step this week of maintaining global jurisdiction over Google and forcing it to delete search results not just for “google.ca” but for “google.com” as well. The move comes as lawmakers in Europe pressure Google to censor more pages under a controversial “right-to-be-forgotten” law, and could accelerate a recent trend of disappearing online information.

In the Canadian case, Google had urged a judge in Vancouver to suspend an earlier ruling that required it to remove any search links related to an e-commerce vendor accused of selling knock-off internet equipment. That ruling, which came out in June and gave Google 14 days to remove the results, is now in force after the judge concluded that applying the worldwide ruling would not create “irreparable harm.”

The ruling already appears to be rippling beyond Canada’s borders. For instance, when I searched in the U.S. for a product called “GW-1000,” Google shows that it has censored at least four webpages:

search results missing

The “we have removed results” notice almost surely relates to the Canadian court order, though Google did not immediately confirm this.

While the Vancouver judge agreed to let Google appeal the censorship order, it is currently in force and raises significant legal and free speech issues. As Google pointed out to the judge, the ruling appears to set a precedent in which any court, in any corner of any nation, can dictate what Google can show the rest of the world.

This could open the floodgates for regional censorship practices — for instance, rules against Nazi-related search results in Germany — to become global. The Canadian ruling could also give European leaders more leverage as they pressure Google to expand enforcement of the “right to be forgotten.”

As the BBC reports, Eurocrats are displeased that Google has been notifying news publishers when the company removes results. They are also deliberating whether the censorship requests, which have already led to the disappearance of tens of thousands of search results, should apply to google.com as well as to national sites like google.fr.

The new Canadian ruling also creates conflicts with the laws of the United States, where search engines enjoy free speech protection under the First Amendment.

Down the memory hole

The Guardian warned this month about six of its news stories going “down the memory hole” as a result of Europe’s right-to-be-forgotten law, and others have echoed this fear. As I’ve argued before, we’re on dangerous ground because, even though disputed content will remain on the internet, it will be very hard to find without a search engine.

The Canadian decision will only make this worse because it could embolden judges elsewhere to agree to censor Google worldwide. And while my colleague David Meyer makes the case that local law should not have to bow to American internet norms, it’s hard to see where all this stops.

Until now, we have at least had the safeguard of the so-called “Streisand effect,” which is coined after an incident involving actress Barbara Streisand, and refers to attempts to censor the internet that bring yet more unwanted attention. Indeed, that’s what happened for a time with Max Mosley, the son of the late U.K. Fascist party leader, who was filmed cavorting in a S&M orgy with five German speaking prostitutes — his attempt to suppress the incident just drew more attention to it.

Now, however, Mosley is winning the right to delete history — and so are tens of thousands of other people. With such a large amount of information disappearing, it will be harder for the internet to single out individual cases for “Streisand” treatment, and more information will disappear unnoticed.

As for the Canadian case, the Vancouver judge points out that ruling could still get over-turned. Here are some key passages from the decision, which was spotted by Barry Sookman:

[27]         The lack of evidence of irreparable harm, in particular, leads me to the conclusion that Google’s application must be dismissed

[…]

[31]         Google argues, rather, that it will suffer irreparable harm as a result of the precedent established by the granting and enforcement of the injunction. It says the fact a Canadian court has made an order limiting worldwide search results and the fact the order has not been stayed pending an appeal, will have serious and damaging effects on its clients and its business. It argues the enforcement of the injunction and presumably its observation by Google may result in other jurisdictions regarding Google as a vehicle for global enforcement of their laws. It makes a “floodgates” argument to the effect that similar orders in other jurisdictions may result in global content on the Internet being reduced to the lowest common denominator. It is of the view that compliance with the order would cause users to lose trust in the credibility of the Google search engine and lead to a loss of business.

[…]

[35]         I cannot accede to that argument. First, while clear proof of irreparable harm is not a prerequisite to the granting of a stay, the onus rests upon the applicant to establish sufficient doubt as to the adequacy of damages before a stay will be granted: B.C. (A.G.) v. Wale and see Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Toronto: Canada Law Book, 2013) at § 2.41-2.43. I am not satisfied Google has done so in this case. A stay will not change the fact that the Supreme Court of British Columbia has found jurisdiction to make the impugned order. It would only permit Google to say to its customers that a justice of the Court of Appeal has ordered that Google will not be compelled to comply with the judgment below until and unless it is been affirmed by the Court of Appeal. Google’s customers will be left, as they are now, to weigh the merits of Google’s argument that the court below exceeded its jurisdiction and that the judgment of the Supreme Court will be reversed on appeal. A stay should not be regarded as an expression by this Court of any considered opinion with respect to the prospect of success on appeal, except as an indication that there is an arguable appeal. The stay will only be useful to avoid the irreparable harm alleged by Google if it is used, as it should not be, to assure Google’s customers that the decision below will not withstand scrutiny on appeal.

[36]         Further, it is an argument the court should reject in principle. In my view, I should not give any weight to the argument that Google’s reputation will suffer if it acts in accordance with the rule of law, appeals those decisions it believes will have an adverse impact on its clients, assiduously defends its business and its clients’ interests and pursues its appeal diligently. It would be wrong in principle for me to recognize, as irreparable harm, any damage to Google’s reputation that might result from its clients’ misapprehension of procedure in this jurisdiction and the appropriate test on an application for an interim stay in the Court of Appeal.

[37]         The application for a stay is dismissed.

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