“[T]he right to freedom of expression on the Internet is an issue of increased interest and importance, as the rapid pace of technological development enables individuals all over the world to use new information and communications technology.”
In 2013, the United Nations Human Rights Counsel acknowledged the increasing interest in ensuring the freedom of expression. This concern is not new, nor has it been alleviated. Single-state actors are increasingly depriving non-citizens of free speech by implementing world-wide censorship orders on private companies.
This article will describe the background of adopted declarations and covenants regarding freedom of expression. Next, this article will discuss the practice of worldwide censorship by single-state actors. Google will be discussed in depth as well as other recent developments of single-state global censorship. Finally, I will propose a legal test to be adopted globally by an international convention. This test will aid courts to decide whether one state should impose their will on global communications and provide an appellate process. The standard consists of one proposed by an intervener in Google and is a fair, cautious, and last-resort style approach that respects cultural differences and the inherent right of a sovereign state to govern its territories.
No country should control the type of online content available in other countries. To do so creates a race to the bottom where countries with competing interest, culturally and economically, will create stricter and stricter rules that regulate all aspects of freedom of expression on the Internet.
Article 19 of both the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) aim to protect the right to receive information regardless of frontiers and through any medium. It has become customary to emphasize that individuals enjoy the same rights online as they do offline. In the context of internet censorship, the ICCPR can be extended to say freedom of expression may be limited “[f]or the protection of national security or of public order, or of public health or morals.” Without restriction, the UDHR states that freedom of expression should be “without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”
Any restriction must be precise enough and publicly accessible in order to limit the authorities’ discretion and provide individuals with adequate guidance. To be necessary, a restriction must be more than merely useful, reasonable or desirable. It is also well established that necessity requires an assessment of proportionality. Proportionality requires demonstrating that restrictive measures are the least intrusive instrument among those that might achieve their protective function and proportionate to the interest to be protected. Notwithstanding a difference of application within states, there have been an increasing number of courts that impose their will on the entire world. Several organizations around the world have been struggling to recommend the best course of action moving forward. The next section exemplifies why necessity and proportionality tests are not enough.
GOOGLE V. EQUUSTEK SOLUTIONS, INC.
On June 28, 2017, the Supreme Court of Canada ordered that Google, Inc. must de-index websites identified by the court through a worldwide injunction. Google is a non-party to the original suit, but while a court order does not bind non-parties, “anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court.” Equustek, a small tech company in British Columbia, sued its former distributor, Datalink Technology Gateways (“Datalink”), which was selling allegedly counterfeit versions of its products online. Equustek won a default judgement and acquired several injunctions that proved ineffective. In a last resort effort to stop Datalink, Equustek won an injunction to have Google de-list all of Datalink’s websites in Canada. That injunction did not stop Datalink from hosting websites outside Canada, so the court granted a worldwide injunction. Google appealed, but was denied as only a theoretical argument.
The Court concluded that Equustek faced irreparable harm to its intellectual property and profits because Google has a seventy to seventy-five percent market-share of global Internet searches. The court further agreed with the court below, finding that: (1) in personam jurisdiction, thus the court could make an order with extraterritorial effect; (2) courts of inherent jurisdiction could grant equitable relief against non-parties; (3) an interlocutory injunction against Google was the only practical way to prevent Datalink from flouting the court’s several orders; and (4) since there were no identifiable countervailing comity or freedom of expression concerns that would prevent such an order from being granted, the interlocutory injunction should be upheld.
This decision immediately garnered outrage related to the fourth point above. The Canadian decision opens the door for other countries to interpret what “freedom of expression concerns,” are and what “proportional” to preventing “irreparable harm” means. For example, some countries may want to order a worldwide injunction on religious websites, websites hosting educational materials, or websites aimed at empowering women – the ends are boundless. Practically speaking, the refusal to classify the sale of counterfeit products as free speech may be correct. However, the application of the rule of law, to allow any singular sovereign to impose its judgment on the rest of the world, contrary their own beliefs, laws on censorship, or due process, is dangerous to international human rights.
OTHER RECENT DEVELOPMENTS
Canada’s ruling is not the first of its kind. In 2014, Google Spain lost a case where the highest court in the Europe declared that it must remove global listings of personal information on third-party websites upon request.
Two years later, the so-called “right to be forgotten” led to a $112,000 fine from a case in France. Google has fought hard to limit single-state legal decisions to its local operations like Google.fr in France, saying that applying the ruling worldwide would infringe people’s freedom of expression. France, in opposition, claims that privacy and human rights are best served by protecting the personal data of individuals because individual privacy is a fundamental human right. This clear divergence in fundamental values exemplifies an impending global crisis that is ripe for global solution. The facets of differences in interest between a large multinational corporation and a sovereign state continue to grow – but in this instance, there may be a solution.
THE NEED FOR A WORLD STANDARD FOR EXTRATERRITORIAL CENSORSHIP
In Google, there was a proposed standard for the Canadian Supreme Court to use, but it was completely ignored. The Electronic Frontier Foundation’s (“EFF”) interest is to propose a:
“principled test, with specific requirements, as guidance for Canadian courts when considering the granting of mandatory worldwide injunctions affecting non-parties in foreign jurisdictions, particularly where such orders restrain free expression on the internet…the extraterritorial effects of mandatory worldwide injunctions that restrain free expression on the internet are anathema to judicial comity.”
With few modifications, the EFF test should be applied in all courts bound by an international convention so that the rights, values, and sovereignty of all states are respected. This two-prong test runs akin to the “strict scrutiny” test used in United States federal courts.
First, the threshold question should be whether an order with extraterritorial effect may offend another state’s core values or run contrary to the law of any jurisdiction whose citizens the order might affect – with the burden of proof resting on the plaintiff seeking worldwide injunction. If there is a “realistic possibility” that an order may offend another state’s core values or be against its laws, the order shall not be made because of an exceedingly high burden on the plaintiff.
If the proposed injunction passes the first prong, the plaintiff must then meet each element of the second prong by proving: (1) a strong prima facie case on the merits; (2) substantial and irreparable harm to its interest; (3) no reasonable alternative will prevent such harm; (4) the proposed order is narrowly tailored to minimally impair freedom of expression; (5) the order is technically feasible and enforceable; and (6) the beneficial effects of the order will outweigh the detrimental effects on the rights and interests of the enjoined party and the public, including the effects on the right to free expression. In addition, this proposed framework would include leave to appeal for certiorari in a neutral international court.
This test presents an extremely high burden, but is open to flexible use in practice. The first prong will allow a court to receive amicus briefs from other states, industries, and human rights groups alike for review. Thus, the first prong promotes a comprehensive forum that can be extended or limited to the extent the court pleases.
The second prong provides a necessary quest for validity and viable alternatives. A strong prima facie case with substantial irreparable harm should be proven in any case regardless. A search for reasonable alternatives is a rational approach for an injunction effecting several billions of people. A narrowly tailored injunction prevents runaway courts from imposing their will on the world, as they currently do. Then, to ensure redressability, the remedy must actually be technically possible, meaning that a company like Google or Bing has the technological capability to comply without the need of constant oversight by the court.
The most flexible, yet difficult element would likely be the last element that provides a balancing test, benefit versus detriment. To illustrate, the United States currently allows pornography, while several countries do not. The United States bans terrorist organization websites, but others do not. Some countries have strong piracy laws, while others have none. Each of these policies stem from fundamental values where policy decision makers balance benefit versus detriment. This presents a problem because courts may abuse the proposed test on these grounds.
However, the only balancing consideration should be on human rights and the impact on freedom of expression, for which there is a long history in international law. Thus, an independent, appellate level international court is necessary. This court should consist of a tribunal unbiased by their cultural norms, and as large as necessary.
The decision in Google has raised the issue before us to a tipping point. The proposed convention contained here is meant to spark a meaningful debate in the United Nations and beyond. There will need to be many details negotiated in order for a convention, rather than a resolution, to be passed. The proposed convention intentionally omits any cultural or value-based biases. The only common value, which will be the driving force to adopt this convention, is the respect for freedom of expression. Each state has the right to decide what that means for itself, but not for all.
- Human Rights Council Res. 32/13, U.N. Doc. A/HRC/RES/32/13, at 7 (July 1, 2016).↑
- H.R.C. Res. 32/13, supra note 1, at 2.↑
- See generally Reuters in Ottowa, Google Can Be Forced to Pull Results Globally, Canada Supreme Court Rules, The Guardian (June 29, 2017, 2:46 PM), https://www.theguardian.com/technology/2017/jun/28/canada-google-results-supreme-court; Jeff J. Rogers, Google Must Delete Search Results Worldwide, Supreme Court of Canada Rules, Fortune (June 28, 2017), http://fortune.com/2017/06/28/canada-supreme-court-google/.↑
- Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL).↑
- See Kent Walker, A Principle That Should Not Be Forgotten, Google In Europe (May 16, 2016), https://www.blog.google/topics/google-europe/a-principle-that-should-not-be-forgotten/↑
- International Covenant on Civil and Political Rights art. 19(2), opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Human Rights Comm., General Comment No. 34 on Article 19: Freedoms of Opinion and Expression, ¶ 15, U.N. Doc. CCPR/C/GC/34 (Sep. 12,2011) [hereinafter UDHR].↑
- Human Rights Council Res. 32/38, U.N. Doc. A/HRC/32/38, at ¶ 6 (May 11, 2016).↑
- ICCPR, supra note 6, at 178.↑
- UDHR, supra note 6, at 75 (emphasis added).↑
- H.R.C. Res 32/38, supra note 7, at ¶ 7; See, e.g., UDHR, supra note 6, at 71.↑
- Sunday Times v. United Kingdom, App. No. 6538/74, at ¶ 59, Eur. Ct. H.R. (1979), http://hudoc.echr.coe.int/eng?i=001-57584.↑
- See Human Rights Council 29/32, U.N. Doc. A/HRC//29/32, ¶ 36 (May 22, 2015).↑
- H.R.C. 29/32, supra note 12, at ¶ 36.↑
- See, e.g., Aaron Mackey, Corynne McSherry & Vera Ranieri, Top Canadian Court Permits Worldwide Internet Censorship, Electronic Frontier Foundation: Deeplinks Blog (June 28, 2017), https://www.eff.org/deeplinks/2017/06/top-canadian-court-permits-worldwide-internet-censorship.↑
- Google, 2017 CarswellBC 1727 at ¶ 41.↑
- MacMillan Bloedel Ltd. v. Simpson,  2 S.C.R. 1048 (Can.).↑
- Google, 2017 CarswellBC 1727 at ¶ 3.↑
- Id. at ¶ 12.↑
- Id. at ¶ 44.↑
- Id. at ¶ 18.↑
- Id. at ¶ 20.↑
- See generally Reuters, supra note 3; Rogers, supra note 3.↑
- Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, 2014 E.C.R. 314; Court of Justice of the European Union Press Release 70/14, An Internet Search Engine Operator is Responsible for the Processing that it Carries out of Personal Data Which Appear on Web Pages Published by Third Parties (May 13, 2014).↑
- Mark Scott, Google Fined by French Privacy Regulator, New York Times: Technology (March 24, 2016), https://www.nytimes.com/2016/03/25/technology/google-fined-by-french-privacy-regulator.html?_r=1.↑
- Scott, supra note 24.↑
- National Commission of Informatics and Civil Liberties Deliberation No. 2016-054, Imposing a Monetary Penalty Against Google Inc. (March 10, 2016).↑
- Brief of Intervenor Electronic Frontier Foundation, Google Inc. v. Equustek Sols. Inc., 2017 CarswellBC 1727 (Can.) (WL) (No. 36602) [hereinafter EFF Brief].↑
- EFF Brief, supra note 27, at ¶ 1-3.↑
- See, e.g., Fisher v. University of Texas at Austin, 136 S. Ct. 2198, 2214 (2016)↑
- EFF Brief, supra note 27, at ¶ 26.↑
- EFF Brief, supra note 27, at ¶ 27.↑
- EFF Brief, supra note 27, at ¶ 28.↑
- Google, 2017 CarswellBC 1727 at ¶ 53.↑
- See generally ICCPR, supra note 6, at 173; UDHR, supra note 6, at 71.↑