[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

Datalink allegedly misappropriated Equustek’s trade secrets to develop competitive products. Equustek sued Datalink in Canadian courts and obtained various court orders. The Datalink principal fled Canada and can’t be found.

Equustek requested that Google delist Datalink from its search results. Google said no, but after Equustek obtained a Canadian injunction against Datalink, Google removed 300 Datalink search results from Google.ca. However, Google did not delist Datalink in its other global search indexes. Equustek then obtained a Canadian court order requiring Google to globally delist Datalink. Google complied but appealed. The Canadian Supreme Court affirmed the global delisting order.

With no further moves to make in Canada, Google sued in the US for “a declaratory judgment that the Canadian court’s order cannot be enforced in the United States and an order enjoining that enforcement.” Equustek did not make a proper appearance in the case, leaving Google’s request uncontested. On Thursday, the district court granted Google’s injunction request.

Google raised First Amendment, Section 230, and international comity objections to the Canadian court order. The district court only discusses Section 230. The court treats this as an easy Section 230 case:

Google provides an interactive computer service. Cites to O’Kroley, Parker, Gonzalez.

Datalink is a third party “information content provider” to Google. The court says: “Google’s search engine helps users discover and access content on third-party websites, but it does not ‘provide’ that content within the meaning of Section 230.” Cite to O’Kroley.

The Canadian court order treats Google as the publisher of Datalink’s content. The court says: “a claim treats an intermediary as a publisher when it requires the intermediary to remove third-party content.” Cite to Barnes. Thus, the “Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.”

Having found that Section 230 means Google is likely to prevail on the legal merits, the court grants Google’s requests because:

Google is harmed because the Canadian order restricts activity that Section 230 protects. In addition, the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law…. An injunction would also serve the public interest. Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting user-generated content…. The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet

What’s Next?

The district court ruling is not surprising because it’s basically a default judgment. The real question is what, if anything, this court’s ruling means. The short answer is: I don’t know.

The most likely scenario is that Google will proffer this court ruling to the Canadian courts to demonstrate how the Canadian court order establishes a conflicts with the law of other countries. What happens after that isn’t clear to me. Equustek can raise challenges to Section 230 (which it didn’t do in the US court) in a renewed Canadian court proceeding, so the entire US law question could be relitigated there. Perhaps the US ruling will prompt Canadian courts to recognize the error of their prior rulings. Or perhaps Canadian courts to shrug their shoulders about what a US court says.

If the Canadian courts don’t loosen their injunctions against Google, Google probably won’t ignore the Canadian court order and rely on the US court order. After all, the Canadian courts can still punish Google in Canada, unlike a smaller start-up that might lack assets or people in Canada. So long as the Canadian court order remains in effect and Google has a physical footprint in Canada, a US court order purporting to protect Google probably won’t protect it.

An unlikely scenario is that Equustek appeals this ruling to the Ninth Circuit. After all, they didn’t properly challenge the case yet, so why would they show up now?

In all of these circumstances, it’s unlikely that this US court ruling will be the final word in the matter.

Implications

This case implicates one of the most venerable and crucial questions in Internet law: because Internet companies operate across many geographic jurisdictions with different legal rules, can every single one of those geographic jurisdictions dictate the content standards for the rest of the globe?

Perhaps you aren’t sympathetic to Google because of the trade secret angle. Perhaps Equustek could win a trade secret misappropriation case under the laws of other geographic jurisdictions. However, assume for a moment that different jurisdictions have different rules for trade secret protections. The Canadian court ruling suggests that Equustek could find a jurisdiction–any jurisdiction–that recognizes its trade secret claim and then use a court order from that jurisdiction to globally scrub content, even if the other jurisdictions would not have recognized Equustek’s claim.

And once we step away from trade secrets and look at other types of regulated content where the legal rules vary substantially by jurisdiction–say, pornography or defamation–the strategic stakes of this case become even clearer. If every plaintiff can go to a country with the most restrictive law and get a court ruling under that country’s laws that dictates what content is available across the globe, then the Internet of the future will reflect the most restrictive laws around the globe–a very different Internet than the Internet we love today.

This is not a hypothetical concern. The same policy questions are raised by Europe’s “right to be forgotten,” which lets EU residents scrub certain types of search results. Initially, Google offered to scrub RTBF-targeted search results in its EU indexes but not in other indexes. Then, under pressure from the EU, Google offered to filter the results seen by EU residents, even if they voluntarily access a non-EU search index (i.e., if an EU resident goes to Google.com, the results they see from Google.com will remove the RTBF-targeted links). France has taken the position that Google’s latest solution still isn’t good enough;; it wants Google to remove the targeted links globally, from all search indexes. In other words, France’s vision would allow countries with more restrictive laws to determine the content seen in countries where the links are legal under local law.

Even if the Canadian global delisting order and the France RTBF overreach ultimately fail, notice how far we’ve come from the circa-1990s global utopian vision of the Internet. The best-case outcome that’s still obtainable is that, due to variations in local law, the search indexes in different countries look different from each other. Indeed, most Internet companies now do localized versions of their service both for legal and non-legal (cultural and linguistic) reasons. Increasingly, the “Internet” in country A looks quite different from the “Internet” in countries B-Z. There is, in fact, no single “Internet” any more. We already live in a world with lots of different “Internets.” The social ramifications of the Internet’s fragmentation into the Internets remain to be seen.

Case citation: Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal. Nov. 2, 2017)