The Supreme Court of Canada took on Google and basically won

October 3, 20174 Minute Read

In late June, the Supreme Court of Canada stirred up a hornet’s nest of commentary on hot-button topics like free speech and internet piracy. They ordered Google (yes, THE Google) to remove certain search results not only from Google.ca, but from every one of the search engine’s national sub-sites.

What does this mean? Well, some argue that Canada is imposing its laws on international territory. Regardless of their feelings on the decision’s social implications, many in the business and IT communities fear it could have a negative impact on their international dealings.

The case all started with a Canadian company called Equustek Solutions. It filed to have Google de-list websites hosting versions of their copyrighted products that infringe on their patents. Google complied, but only on its Canadian sub-site. From Equustek’s perspective, the sites were still visible to most Google users and still causing damage, so the company filed again to have the sites de-listed from all of Google, making the content truly unavailable.

The real source of the controversy falls on both sides of the same coin:

  1. Can a Canadian judge tell an international company how it can conduct itself outside of Canada?
  2. Can a judge outside of Canada tell an international company how it can conduct itself here at home?

Use the law to your advantage

It’s not all bad news. The legal firm Fasken Martineau said in a recent blog post: “This decision may provide plaintiffs with an effective means to help mitigate such harms [as invasions of privacy, defamation, trademark and copyright infringement] arising through the internet, whether emanating from the conduct of domestic or foreign-based defendants.” We’re a little shook, but there’s really no reason not to make use of these new powers—especially if your business is dealing with a foreign antagonist online.

From exploitative domain parking and copyright infringement to defamatory fake news, feel comforted knowing that the Canadian government does have some ability to reach out and enforce its decisions on a foreign government.

Speech as a business expense

We’ve got to take a global bird’s-eye view here, though. From everyone else’s perspective, Canada is a foreign government. “This is not an order to remove speech that, on its face, engages freedom of expression values,” read the Court’s decision, ignoring the single most fundamental fact about law, overall: It applies to more than just the particular case being tried at the moment, and has implications for every similar case in the future. Yes, Canadian companies could benefit from the ability to protect their intellectual property—but they could just as easily become subject to arbitrary or unforeseen foreign laws.

ITDMs can’t exactly choose to ignore this one easily. We have to plan for possible legal reactions to our own work. Everything posted online is global in reach, so anyone with posting privileges could open the company to all manner of legal and civil proceedings. The good news? It’s still mostly a theoretical problem.

The bad news? The potential losses are great enough that action still needs to be taken, now.

Brush up on international law (no, seriously)

Thanks a lot, Supreme Court of Canada—this was not in the original job description. These days, recruitment is global, especially for specialized positions like STEM or management. Something once considered so tricky is now officially an issue: Since your business is habitually posting information around the world, you have to monitor for anything that could break privacy or employment regulations … around the world. Your team could even come up against foreign diversity or affirmative action laws.

According to Fasken Martineau, “It is not difficult to imagine scenarios in which foreign courts may make similar orders that have the effect of restraining Google search results in ways that impact the affairs and conduct of Canadian organizations or individuals, even if such conduct is otherwise permitted under Canadian laws. The Canadian individual or company may suffer harm as a result, even though they have not violated Canadian laws or had an opportunity to defend themselves in the foreign court.”

Keep management in the loop

Try not to sweat: It’s unreasonable to expect that ITDMs will become experts in the legal codes of every jurisdiction in which their company operates. It’s more realistic that online postings will become more rigidly structured, built according to the most internationally inoffensive template possible, or simply posted with geo-blocking to prevent viewing outside of the strictly intended territory. These are decisions that have to ultimately come from management—meaning that it’s up to ITDMs to keep them up-to-date on what’s needed.

The internet is never going to stop changing the face of business. As a matter of survival, businesses will have to learn how to adapt to new legal situations way more quickly than ever before.

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