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Where does this stop?

Courts in Europe have been forcing Google(s goog) to scrub embarrassing search results, and now one in Canada has made an even broader ruling: it ordered the search engine to delete websites not only from the Canadian version of Google, but across the world as well. The decision is part of an alarming trend of disappearing online information.

The Canadian decision, in case you missed it, is about a company that is trying to stop a rival from selling network devices that it claims are the fruit of its stolen trade secrets. As part of its lawsuit, the company wants Google to remove all search results that link to the rival’s more than 300 websites.

In response, the Supreme Court of British Columbia issued a sweeping temporary injunction last week. The injunction matters because it will have a global effect; in less than 14 days, people in Canada will be no longer be able to find the websites in Google, and neither will Google users in other countries.

Local law, global fall-out

At first glance, it’s easy to sympathize with Equustek Solutions, the Canadian company that wants to scrub the search results. After all, if what it says is true, its rival has stolen its technology and is selling it on websites around the world.

Google has no direct role in this, but the company’s services are certainly useful to the rival: in this case, would-be customers looking for the product called “GW-1000” find the rival’s websites (here’s an example) through the search engine. The rival advertises on Google too.

While Google voluntarily agreed to remove the rival’s search results from “Google.ca,” which is what most Canadians use to surf the web, it refused to do the same for its other sites like “Google.co.uk,” “Google.fr” and, most importantly, Google.com. That led the company to seek an injunction removing the search results from all versions of Google.

Google pointed out to the judge that if she granted such an injunction, she would be imposing Canadian law around the world. The judge was unfazed and said, in effect, “well, we have to keep up with the times.”

Google is an innocent bystander but it is unwittingly facilitating the defendants’ ongoing breaches of this Court’s orders. There is no other practical way for the defendants’ website sales to be stopped […] The Court must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet. I conclude that an interim injunction should be granted compelling Google to block the defendants’ websites from Google’s search results worldwide. [emphasis added]

(The judge also justified her ruling by pointing to other types of orders, known as Mareva Injunctions and Norwich Orders, which have extra-territorial application for situations involving asset seizures and the discovery process.)

The ruling is good news for the Canadian company in its quest to protect the “GW-1000” device, but bad news for the rest of us. Google search results are looking like swiss cheese in more and more places, and this new decision won’t help.

A precedent to remove search results for “Jews” or “gays” too?

The British Columbia judge suggested her decision was inspired in part by recent rulings in Europe in which courts said Google must abide by people’s requests to “be forgotten” from its search results. In other words, if Europe can order Google to delete search results, why can’t Canadian courts do the same?

The problem here is not simply that the judge’s order applies beyond Canada’s borders, but that it could also inspire courts in other countries justification to seek extra-territorial powers too. As law professor Michael Geist notes:

“What happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.”

As I’ve argued before, we’re in dangerous territory here, since scrubbing Google is not only censorship, but effaces history as well. Google, today, is like a library catalogue of available knowledge; while different countries may choose not to make certain knowledge available, people should be able to know it exists in the first place — and the best way they can do so is through Google.

But what about websites that flagrantly violate intellectual property? This is a real problem but blacking out sections of Google is not the right response, especially given how quickly will people will rush to abuse such a process. A better response could be for courts and governments to target the payment and advertising infrastructure that allows illegal sites to flourish, rather than the information system that lets us know they exist in the first place.

Finally, note that Americans will not have to worry about disappearing search results, since the First Amendment’s broad speech protections also apply to Google. The rest of the world, however, could soon start seeing depleted versions of the popular search engine.

If you want to read more about the Canadian case, see lawyer Barry Sookman’s excellent breakdown of the legal issues here.