The Supreme Court of Canada will hear a case in early December that will decide whether a Canadian court can control what content can — and can’t — appear on the Internet worldwide.

It’s a case experts say is the first of its kind in Canada, and some say the outcome could shape the future of free expression online.

Internet giant Google is appealing a 2014 injunction granted by the British Columbia Supreme Court that ordered the search engine to wipe certain websites from its search results across the globe. The injunction was granted to resolve a legal dispute between two companies over trademark infringement.

About five years ago, Equustek Solutions Inc. — a small, Burnaby-based technology firm that manufactures networking devices — sued a company called Datalink, accusing it of creating a competing product using Equustek’s trade secrets and selling the counterfeit products online. The B.C. Supreme Court ordered Datalink to cease and desist — but the company continued to sell its products online outside Canada.

During the original litigation, Equustek went to Google and asked the search engine to de-list Datalink-affiliated websites from google.ca. — which Google voluntarily did. When that didn’t solve the problem, the tech firm then asked Google to de-index the offending webpages from all its search results around the world.

Google refused to go that far, prompting Equustek to apply for a worldwide order against the search engine giant through the same provincial court, which did grant the injunction. Google fought the order in the B.C. Court of Appeal and lost. Google appealed once more to the Supreme Court, which confirmed in February of this year that it would hear the case.

Oral hearings for the appeal will begin Dec. 6, 2016.

In August, Chief Justice Beverley McLachlin highlighted the case as one of the more “challenging appeals” the court will hear this fall.

THE INTERVENORS

The case has drawn the attention of a range of Internet law experts, civil liberties groups and rights-holders across North America.

Seventeen individuals or groups of intervenors — including more than 30 digital rights organizations, technology companies, media associations and even film producers — have thrown themselves at the opportunity to intervene in the case.

The Supreme Court has allowed 11 of those 17 groups to submit written arguments to the court. The online case docket shows familiar names like the Canadian Civil Liberties Association, the Associated Press and AOL Inc.

Interviews with a handful of the intervenors and Internet law experts show there is a distinct divide between those who support the injunction against Google as it stands now, and those who do not — and the intervenors are almost evenly split in that regard.

Barry Sookman, a senior partner specializing in technology law at McCarthy Tétrault, is representing a group of rights-holding intervenors — including the International Federation of the Phonographic Industry, Music Canada and the Association of Canadian Publishers.

A Canadian court, Sookman says, absolutely has the authority to enforce an injunction like the one they’ve imposed on Google — and in general, it can enforce such orders on non-parties to litigation “where necessary in the administration of justice.”

“Courts have granted orders like this for years in the offline world,” says Sookman, who is also the former head of McCarthy Tétrault’s intellectual property group. “The law doesn’t suddenly change when you move onto the Internet.”

However, some digital rights groups intervening in the case — like the OpenMedia Engagement Network — say such an injunction could have much larger legal consequences.

OpenMedia — a non-profit organization that works to “keep the Internet open, affordable, and surveillance-free” — is arguing that if the Supreme Court forced Google to erase websites worldwide in this case, it would set a “dangerous precedent” and have a legal ripple effect across the globe.

Meghan Sali, a communications specialist with OpenMedia, says foreign courts could look to the Canada’s ruling and determine that they, too, can order Google to de-index any content deemed unlawful in their countries.

“How do we deal with these issues without opening a can of worms and encouraging behaviour … where courts in a different country then say, ‘Well, gay marriage, that’s illegal here … and it’s illegal to seek information about relationships that are outside of the norm’?” Sali says.

“Having that type of information declared illegal by a court and then censored worldwide is very problematic.”

OpenMedia — which is intervening in a court case for the first time ever — asserts that the injunction against Google compromises the value of free expression, as reflected in the Canadian Charter of Rights and Freedoms.

In their written arguments submitted to the Supreme Court, the organization claims that injunctions that “restrict the ability of search engines to display and (the ability of) individuals to access expressive content” on the internet “limit the dissemination and flow of information online.”

And so OpenMedia is asking the court to recognize the internet as “a protected medium of communication under section 2(b) of the Charter.”

“The argument that we’re putting forward is extremely bold,” Sali says. “I don’t think that’s ever been argued before.”

On the flip side, however, Sookman says OpenMedia’s submission about the case’s implications for free expression online is “a straw man argument” and he doesn’t see how any “dangerous precedent” could be set.

“This case doesn’t purport to limit freedom of expression on the internet,” he said. “This case is really about: Can a court make an order against somebody that’s involved in providing a service on the internet where they’re facilitating a wrong?”

“In terms of the public’s right to receive information, the reality is, that information was determined to be illegal and was ordered to be removed from the internet because it was violating trade secrets,” Sookman adds. “So this order doesn’t detract from what users had any reasonable expectation of receiving.”

Sookman says it also makes no sense to bring the Charter into the debate. The Charter applies only to government action or a “government law that limits free speech,” he says, and it is not applicable to private disputes between parties.

AN INTELLECTUAL PROPERTY LAWYER WEIGHS IN

Trent Horne, an intellectual property law specialist, says he sees merit in the different arguments presented by the intervenors.

“I can see why rights holders would … favour this kind of order,” says Horne, who is a trademark and copyright lawyer at Bennett Jones in Toronto. “This is an effective remedy that can give you access to the result you want without paying a fortune in legal fees in multiple countries.

“But at the same time, I can understand why people are alert to issues of expression and communication.”

Horne — who is not a stakeholder in the case — says if the Supreme Court were to uphold the injunction against Google, he figures it would lay out a “stringent test” that would enumerate how and under what circumstances similar orders could be granted in the future. Horne says he predicts this would be a “real challenge” for the court.

“With this kind of order, it seems to be more of an ongoing obligation,” he says. “It’s not (only) shutting down the certain URLs that are there today, but what ones might percolate up tomorrow. How long is the obligation going to go for?

“And if these orders are granted and Google then starts getting a pile of them on their desk, how diligent do they have to be to enforce them?” Horne adds. “If they miss one, what’s the consequence?”

Sali says she takes issue with the prospect that online third parties like Google, Facebook or Reddit might have to assume a “role of policing content on the Internet” moving forward.

“It’s problematic to see companies like that being used as an enforcement tool, especially if we recognize there are certain types of intermediaries that are kind of mere conduits of information as opposed to promoters of information,” Sali says.

Horne says if Canadian courts decide at the end of day that they can control internet content across the globe, they will have to “be willing to accept the consequences of orders from foreign courts for Canadian companies that work somewhere else.”

Sali doesn’t think that would sit too well in Canada.

“I think that Canadians … would disagree with the idea that a foreign government is restricting what content they can or can’t have access to based on their regional understanding,” she says.

‘NO CLEAR, RIGHT ANSWER’

Both Horne and Sali agree that the questions of jurisdiction that “arise from the internet” are “pretty complex.”

“There’s no clear, right answer,” Horne says.

Regardless of the outcome, Sali doesn’t think the debates that have surfaced in this case will shut down after the Supreme Court issues its ruling.

“This will not be the last time we talk about this,” Sali says. “This is the first time we’re (talking) about this in Canada but worldwide, people are going to be tackling this issue for the next several years.”