By Noah Feldman
Does Canada own the internet? The question may sound like a joke, but it’s the serious challenge presented by a Canadian Supreme Court decision issued last week. The court ordered Google to deindex search results that were letting one side of a lawsuit violate the intellectual property rights of the other — not just in Canada, but worldwide.
The court tried to avoid the difficult free-speech issues by saying those weren’t involved in the case. But what makes the precedent so important is that it raises the core problem of who gets to regulate the internet by ordering around search companies and social media.
The U.S. Supreme Court recently clarified that it thinks the First Amendment mostly blocks the U.S. government from such regulation. That leaves other governments like Canada — or Germany, which on Friday enacted legislation that forces social media entities to remove unwanted content.
A good way to think about regulation in the internet age is to consider two radically different views about who should be doing it, if anyone. In the U.S., the internet is treated as a free-speech zone made up of “vast democratic forums,” as Justice Anthony Kennedy said in a recent opinion. The federal government and the states can’t do much to regulate what is said in that space.
At the same time, the means we use to access that vast forum, such as search engines like Google or social media platforms like Facebook, are treated under U.S. law as private entities with free speech rights of their own. That means Google and Facebook can shape access to content as they please, subject only to market pressures. The First Amendment protects their right to do so.
In sharp contrast to the U.S. model is the approach exemplified by the Canadian decision, as well as by European laws. According to this view, governments are entitled to regulate what happens on the internet in order to protect their citizens according to their own laws.
And those laws include various bans on hate speech and enforcement of privacy laws. It’s important to remember in this context that the U.S. is a free-speech outlier, embracing unfettered discourse in ways most countries — including free ones — consider mistaken and even wrongheaded.
In the Canadian opinion, Google v. Equustek, a British Columbia technology company was trying to block another company from reselling its stolen intellectual property via websites on servers in unknown locations. To protect the company, a trial court ordered Google to deindex, or block, the predator’s website worldwide.
Google was willing to deindex in Canada, but it objected to becoming the means by which the Canadian court sought to enforce its order throughout the world. Among other things, Google said that it was possible the victim company couldn’t have gotten the order in other countries and that deindexing might force Google to violate the laws of some other place.
Invoking a hot-button term in international law, Google said the worldwide order would violate “comity” — roughly, the notion that courts in one country shouldn’t interfere with the laws of other countries. To international lawyers, a comity violation is serious business, conjuring visions of competing jurisdictions fighting legal battles across borders.
In an opinion by Justice Rosalie Abella, who is widely known in international judicial circles, the Canadian court ruled 7-2 that Google had to comply. Abella pointed out that Google hadn’t actually shown that deindexing would break any laws or limit freedom of expression. If in a future case Google found itself in such a bind, Abella said, Google could bring that up. “We have not, to date,” she commented acerbically, “accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”
Abella’s distinction means that Canada, at least, might balk at a worldwide injunction that blocks what other countries would count as free speech. But that won’t be true elsewhere. The proposed German law won’t work if it only limits what is searchable on German Google. Internet regulation has to be universal to work.
That sets up a future of conflict between countries that want to regulate effectively within their borders and those that, like the U.S., want to keep information flowing freely without government intervention.
The particular anomaly is that Google could be regulated within the U.S. by foreign nations — while U.S. law would protect it against domestic regulation.
Advocates of a free internet warn of a race to the bottom, in which the most restrictive countries block free speech everywhere. That’s conceivable but unlikely. Right now Google and Facebook have the capacity to resist being bullied by countries that don’t respect free speech and might want to make access to their markets depend on giving up freedom elsewhere.
But what could happen is something more like a partial jog to the middle — where platforms comply with reasonable countries’ reasonable speech limitations worldwide. That could mean adopting limits on hate speech, for example, or protecting privacy.
In the U.S., after all, those private platforms have the right to adopt those restrictions by choice. So it wouldn’t be unlawful for them to follow, say, Canadian or German guidelines.
In this scenario, Canada really would rule the internet, or at least the platforms we use to access it. Would that really be such a bad outcome?
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.