Saturday, June 21, 2014

Case in British Columbia ("Equustek v. Jack") ignore common sense solutions to problems where plaintiffs want damaging links removed

There is a recent case in Canada, Equustek Solutions v. Jack, for which the Supreme Court of British Columbia, a province, ordered Google to remove a defendant’s websites from it search results worldwide.  I wrote a brief story Friday June 20 on my International Issues blog, giving the reference from the Electronic Frontier Foundation (based on another story, by Michael Geist, here June 17), and considered the idea that one county’s judicial rulings can not be imposed on other countries.  That seems rather obvious.  I can’t imagine that Google (or Bing or Yahoo!) could be required to take down links to LGBT sites (including mine) because of an order from a court in Russia, Nigeria or Uganda.  Would the nature of the diplomatic relations between the countries matter?  It should not, but this might be a good question for the media to ask Secretary of State John Kerry on an interview show. It's significant that the court mentioned the European "right to be forgotten" case as if it were precedential, even though from overseas (and Canada is not part of the EU).  
There’s another aspect to this case that seems to go unnoticed.  Suppose this case had happened within the US.  It would seem natural for the court to order the defendant to remove its websites, if in fact the defendant had committed certain torts or crimes.  The normal experience is that, once a domain is removed, it automatically disappears from search engine results within a few weeks.   So had the Canadian court simply stopped at that, the defendant’s sites would disappear in time anyway.  But if the plaintiff believes it is damaged by the links, it could petition the court to require that the defendant arrange with the search engine companies to remove the links (and cached copies of content) now.  But the responsibility would be put first on the defendant. 
I would wonder how a ruling like this could apply to inside-book searches.  

There's no question that the Canadian decision, like that in Spain, reflects a view that search engine companies are facilitating amateurism, and a belief that self-placed broacast, without gatekeepers, can create disruptions on normal competitive businesses (employing people) that didn't use to exist.  The "negative review" problem is similar in that regard. 
At the end of 2001, someone asked me to remove his name from a particular story on the old hppub site.  The circumstances were unusual, but I did so, and as I recall I did submit a request to remove just that one file (along with a Hometown AOL image) from search results.  That’s the only time I’ve ever done this with a search result.  Search engine companies do offer mechanisms to do this, although available only to the creator of the file.  They generally take about 24 hours to work. 

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