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The Dangerous Proliferation of the 'Right to Be Forgotten'

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Following on last month's ruling by the European Court of Justice that search engines could be forced to take down links that individuals believe infringe their privacy rights, a new ruling from the Supreme Court of British Columbia has ordered Google to remove content not just from its Canadian site, but from all of its global web properties.

While the Canadian case deals with the sale of counterfeit products, rather than privacy, it embraces on the same logic to make its sweeping censorship demands.

At the least, the case may confirm widespread fears that the ruling by Europe's highest court, which applies even to links that are factual and in the public record, could spread a newfound "right to be forgotten" across the globe, opening the door for disgraced politicians, sex offenders, and malpractice-burdened doctors to wipe their slate clean.

But in some ways, the British Columbia decision poses a threat even more dangerous than the fear that courts would pave the way for a fragmented, balkanized Web and lay the foundation for what the Wall Street Journal editorial board warned would be "an Internet with borders." The Canadian case arguably establishes a precedent of national and even local courts handing down dictums that affect freedom of speech around the entire world.

University of Ottawa law professor Michael Geist explains on his blog:

The ruling in Equustek Solutions Inc. v. Jack is unusual since its reach extends far beyond Canada. Rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. Note that this differs from the European right to be forgotten ruling, which is limited to Europe.

The Canadian court's ruling favorably cites the ECJ ruling in Google v. González, which I wrote about in detail here, and relies heavily on it in its effort to assert jurisdiction. If Google does business in Canada by advertising there, then logically, the Canadian court system has jurisdiction over Google's global search results.

Of course, the court isn't simply asking Google to remove specific links. Having determined that "deletion of individual URLs is ineffective" like "an endless game of 'whac-a-mole,'" the court instructed Google to prevent similar content from showing up anywhere for any reason -- indefinitely.

But what happens when a takedown order in one country conflicts with the law in another? This happened in the French court case of Yahoo! Inc. v. LICRA. The case concerned the sale of Nazi artifacts on Yahoo's auction site, which ran afoul of a French law banning the display of Nazi paraphernalia.

When the French court made the bold claim that it had authority over Yahoo's servers in the United States, Yahoo asked a U.S. court to block the ruling on grounds it conflicted with its First Amendment rights and to "confirm that a non-U.S. court does not have the authority to tell a U.S. company how to operate."

While the U.S. court agreed with Yahoo, the company also had substantial business activities in France that could be brought to a halt if it didn't comply. The end result was that Yahoo banned the sale of these objects, even though the French court's decision was ultimately reversed on other grounds.

This case foreshadows some of the strange scenarios and chilling effects that could emerge when regional courts claim jurisdiction over the whole Internet. Geist imagines a few of these:

The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.

As western democracies find ways to limit content online, it gives more heavy-handed governments like Russia an excuse to jump on the global Internet censorship bandwagon.

The Russian Public Chamber has already submitted a recommendation to the Russian Parliament calling for the introduction of a right to be forgotten that would affect not only Russian search engines, but also foreign ones like Google and Yahoo. Countries like China and Korea are also seeking to assert their right to censor the global Internet.

It's hard to imagine why Internet censorship would be the first, best option in any legal dispute. Particularly where other legal remedies seem obvious.

People depend on search engines like Google and Yahoo to be an accurate and open gateway to the web. Allowing any country to leverage privacy or other legal claims to limit search engine content globally will leave us with the lowest common denominator for free speech rights. And that could do a lot of damage to our free and open Internet.

 
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