Canada: Google v. The Court: Free Speech and IP Rights

Last Updated: December 10 2016
Article by Richard Stobbe

Google Inc. v. Equustek Solutions Inc., et al., the long-running  case involving a court's ability to restrict online search results, and Google's obligations to restrict search results has finally reached the Supreme Court of Canada (SCC). Hearings are proceeding this week, and the list of intervenors jostling for position at the podium is like a who's-who of free speech advocates and media lobby groups. Here is a list of many of the intervenors who will have representatives in attendance, some of whom have their 10 minutes of fame to speak at the hearing:

  • The Attorney General of Canada,
  • Attorney General of Ontario,
  • Canadian Civil Liberties Association,
  • OpenMedia Engagement Network,
  • Reporters Committee for Freedom of the Press,
  • American Society of News Editors,
  • Association of Alternative Newsmedia,
  • Center for Investigative Reporting,
  • Dow Jones & Company, Inc.,
  • First Amendment Coalition,
  • First Look Media Works Inc.,
  • New England First Amendment Coalition,
  • Newspaper Association of America,
  • AOL Inc.,
  • California Newspaper Publishers Association,
  • Associated Press,
  • Investigative Reporting Workshop at American University,
  • Online News Association and the Society of Professional Journalists (joint as the Media Coalition),
  • Human Rights Watch,
  • ARTICLE 19,
  • Open Net (Korea),
  • Software Freedom Law Centre and the Center for Technology and Society (joint),
  • Wikimedia Foundation,
  • British Columbia Civil Liberties Association,
  • Electronic Frontier Foundation,
  • International Federation of the Phonographic Industry,
  • Music Canada,
  • Canadian Publishers' Council,
  • Association of Canadian Publishers,
  • International Confederation of Societies of Authors and Composers,
  • International Confederation of Music Publishers and the Worldwide Independent Network (joint) and
  • International Federation of Film Producers Associations.

The line-up at Starbucks must have been killer.

The case has generated a lot of interest, including this recent article (Should Canadian Courts Have the Power to Censor Search Results?) which speaks to the underlying unease that many have with the precedent that could be set and its wider implications for free speech.

You may recall that this case is originally about IP rights, not free speech rights. Equustek sued Datalink Technologies for infringement of the IP rights of Equustek. The original lawsuit was based on trademark infringement and misappropriation of trade secrets. Equustek successfully obtained injunctions prohibiting this infringement. It was Equustek's efforts at stopping the ongoing online infringement, however, that first led to the injunction prohibiting Google from serving up search results which directed customers to the infringing websites.

It is common for an intellectual property infringer (as the defendant Datalink was in this case) to be ordered to remove offending material from a website. Even an intermediary such as YouTube or another social media platform, can be compelled to remove infringing material – infringing trademarks, counterfeit products, even defamatory materials. That is not unusual, nor should it automatically touch off a debate about free speech rights and government censorship.

This is because the Charter-protected rights of freedom of speech are much different from the enforcement of IP rights.

The Court of Appeal did turn its attention to free speech issues, noting that "courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state's core values, the order should not be made.   In the case before us, there is no realistic assertion that the judge's order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs' core rights are respected."

Thus, the fear cannot be that this order against Google impinges on free-speech rights; rather, there is a broader fear about the ability of any court to order a search engine to restrict certain search results in a way that might be used to restrict free speech rights in other situations.  In Canada, the Charter guarantees in Section 7 that everyone has the right to: "freedom of ...expression, including freedom of the press and other media of communication..." It is important to remember that in Canada a corporation is not entitled to the freedom of expression guarantees found in Section 7 of the Charter. (See: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927)

So, while there have been complaints that Charter rights have been given short shrift in the lower court decisions dealing with the injunction against Google, it's worth remembering that Google cannot avail itself of these protections. Sorry Google, but you're not a natural person and you don't enjoy Charter rights.

Although free speech will be hotly debated at the courthouse, the Google case is, perhaps, not the appropriate case to test the limits of free speech. This is a case about IP rights enforcement, not government censorship.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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