AuthorMarinett, Matthew


"The Internet has no borders--its natural habitat is global." (1) These were the words of the Supreme Court of Canada in upholding an injunction against Google that required it to delist (2) the websites of an intellectual property infringer worldwide. The words are, at least in our most common experience of the internet, undoubtedly true. But they also highlight an important discrepancy: the internet may recognize no borders, but the law does. So, when courts choose to apply their domestic law to the internet with worldwide effect, as the Supreme Court of Canada did, it sets the stage for an international showdown between courts and laws, the resolution of which affects internet users around the world.

Shortly after the Supreme Court of Canada's decision, Google attacked the order in California courts, seeking an injunction that would prevent domestic enforcement of the Canadian injunction. In what one Canadian commentator said "should be seen as an international incident", (3) the United States District Court for the Northern District of California granted Google's request, stating that the Canadian order undermines US policy goals and "threatens free speech on the global internet." (4)

The case raised the spectre of individual countries using their domestic laws to control information available to internet users around the globe: a concern a rgued by Google and many others. As couns el for Go ogle put it in response to the Supreme Court of Canada's decision, "one country shouldn't be able to decide what information people in other countries can access online... Undermining this core principle inevitably leads to a world where internet users are subject to the most restrictive content limitations from every country." (5) Google was not alone in this view. The Canadian decision was opposed by numerous civil society human rights and internet freedom organizations, such as Human Rights Watch, ARTICLE 19, Open Net (Korea), (6) the Wikimedia Foundation, (7) and the Electronic Frontier Foundation, (8) on the grounds that it opened the door to worldwide internet censorship and damaged freedom of expression.

The shared concern largely was not that the Canadian order was itself an egregious interference with freedom of expression interests, but rather that it would set the model by which more restrictive states would undermine such freedoms by issuing increasing takedown orders against internet intermediaries. In other words, the concern was that the decision would set an international precedent and thus be reciprocated in far more harmful ways, leading to a "race to the bottom", with respect to freedom of expression, in which the most restrictive regime(s) would become the de facto law of the internet.

The same concern has been raised in response to other recent non-Canadian cases involving global internet takedown orders. (9) An important example of this is the attempt by European privacy agencies to enforce the "right to be forgotten" worldwide. (10) It has also been raised in the social media context following the Australian decision in X v Twitter, (11) and its spectre was raised again in the recent Indian decision of Ramdev v Facebook. (12)

This article argues that the fears of Google and other civil society organizations that such cases might set a precedent that will open the door to more restrictive attempts at worldwide takedowns is a serious concern worthy of courts' consideration. Courts in foreign jurisdictions may follow these decisions either by treating them as persuasive authority or by engaging in reciprocity, and there are early signs that this may already be happening. In order to mitigate this possible threat, I propose that Canadian courts should make use of the principle of comity to create a robust analysis for any potential extraterritorial internet takedown orders against internet intermediaries that considers both domestic and foreign interests. Comity is ideally suited to this as it is not a prescriptive rule, but rather a tool that helps guide courts' discretion in interpreting law, developing the common law, and issuing remedies. Canadian courts should employ comity to begin to establish new international norms on when global internet takedown orders might be made to both allow such orders where necessary, but limit them sufficiently to preserve the open nature of the internet. Indeed, the possibility of establishing--or at least beginning the negotiation of--new norms of internet regulation was the missed opportunity of the Equustek saga.

Part I defines the phenomenon of global internet takedown orders and centres the Canadian exemplar of Equustek within the broader international context of the phenomenon. It argues that global internet takedown orders are unified by their extraterritorial effects on expression interests on the internet and are not readily distinguished on the basis either of the right they seek to protect, nor the particular nature of the targeted content or internet intermediary. This section thus discusses the Supreme Court of Canada decision in Equustek to establish the current approach in Canadian law, but also considers recent cases including the right to be forgotten litigation in Europe and cases targeting social media companies out of Australia and India.

Part II examines the concern raised by numerous commentators and civil society organizations, especially in response to Equustek, that global internet takedown orders undermine freedom of expression and may lead to far more restrictive intrusions to internet freedoms. While this concern has been frequently raised, the causal action by which this concern might be realized has not been fully explored. This part attempts to do so, and argues that these concerns are merited, given the importance of freedom of expression and the right to receive information on the internet, and the real risk that these decisions will be followed or reciprocated by the legal systems of other nations. In examining this latter point, it considers the extent to which courts have followed foreign decisions to justify their own reasoning. It also looks at game theory scholarship on international law, and particularly on the doctrine of comity, which suggest that such cases may break a status quo arrangement of non-interference, leading to a form of reciprocity that may indeed lead to more, and more expression-restricting, takedown orders. Lastly, it addresses contentions that, even if this is happening, we should not much care due to the existing limits of freedom of expression on the internet.

Part III argues that the concern about a race to the bottom with respect to expression finds a natural home in the principle of comity in Canadian law, and that comity can, if properly understood, help mitigate concerns about such reciprocity. And while comity is frequently vague and ambiguous, this section argues that comity in Canadian law can be understood as a means of negotiating, creating, and maintaining international norms of cooperation. These norms can assist courts in limiting the possibility of a race to the bottom for global internet takedown orders. I reach this conclusion with two observations that help understand and give content to the principle of comity in the context of the extraterritorial application of domestic law: that comity is a matter of foreign relations, and that the content of comity in any given context is based on reciprocity. Based on the forgoing, it argues that, while there are no perfect solutions, courts should attempt to balance domestic interests in protecting the right the order seeks to provide a remedy for against the presumed international interest in freedom of expression on the internet, as well as against potential interference with other public policy interests of other states. This part then looks at the Restatement (Third) of Foreign Relations Law of the United States (13) to suggest some factors that might be considered when courts consider comity in the context of global internet takedown orders.


    Global internet takedown orders take the form of injunctions issued by courts or other legal authorities to internet intermediaries (14) that mandate that content be removed from the internet so that it becomes inaccessible to users--at least via the target of the injunction--located anywhere in the world. Orders of this kind, while not entirely new on the global stage, (15) found support from a nation's highest court for the first time in the Supreme Court of Canada's decision in Google v Equustek, in which an injunction against Google was upheld requiring it to remove links from search results to an intellectual property infringer's websites worldwide. (16) That decision simultaneously cemented the availability of such orders in Canadian law and attracted international attention for potentially having far-reaching effects on internet regulation and online freedom of expression. (17)

    Despite its central importance, however, Equustek is but one example of the broader phenomenon of global internet takedown orders being issued by courts around the world. This part attempts to place Equustek within this context, and demonstrates that the phenomenon of global internet takedown orders is not limited either by the right it seeks to protect (e.g. intellectual property, privacy, reputation) or the nature of the content being removed (e.g. search engine results, social media content, entire websites). (18) This is why, for example, Equustek, which concerned intellectual property infringement and targeted search engine results, was discussed at length in a global internet takedown order case out of India concerning defamation and targeting video content hosted by social media companies. (19) This is also why the British Columbia Court of Appeal in Equustek (20) referenced cases such as La Ligue contre le racisme et l'antisemitisme c...

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