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Supreme Court: Google searches and free expression – BCCLA argues free expression must be protected when courts block search results

(Le français suit)
For immediate release

OTTAWA – Tomorrow, December 6, 2016, the Supreme Court of Canada will hear oral arguments in Google Inc. v. Equustek Solutions Inc., a case questioning the authority of Canadian courts to impose worldwide restrictions on Internet search results. The British Columbia Civil Liberties Association (BCCLA) is intervening to ask the Court to carefully consider how these orders affect Canadians’ right to free expression, and ability to access justice.

Caily DiPuma, acting Litigation Director for the BCCLA, said this case is the first of its kind in Canada: “The Internet has become the world’s library. Courts have to be extremely cautious about suppressing search results. Our courts are being asked whether they can control the search results shown on screens around the world. The courts must protect the widest possible range of freedom of expression of all Internet users – including the freedom to seek information. At the same time, courts must ensure that Canadians can get assistance when they are wronged by others who use the Internet to escape the orders of Canadian judges. The BCCLA is hoping to assist the Court in striking the right balance.”

Google was ordered by the BC Supreme Court to remove certain material from its global search results in 2014. The legal case that led to the 2014 court order did not initially involve Google. It was a trademark infringement case where one company re-labelled another companies’ products, passing them off as its own. To minimize the harm caused by these illegal actions, the court ordered the offending company to stop its illegal activities worldwide. The offending company fled British Columbia, continuing the illegal activity through a variety of websites. While Google voluntarily removed the involved websites from their Canadian search engine, it refused to do the same for non-Canadian searches, arguing that the global ban too greatly interferes with Charter protected freedom of expression. In 2015, the BC Court of Appeal upheld the court order against Google, who now appeals to the Supreme Court.

Justin Safayeni, counsel for the BCCLA, noted the BCCLA’s concern about whether Canada’s actions could lead to other countries suppressing Canadian search results: “Canadian courts are deciding what search results are visible to people outside Canadian borders. If another country tried to impose a ban on Canadian internet search results, we would be deeply worried, especially if that ban came from a country with little respect for free expression. We have to approach any restriction on Internet content with extreme caution in order to protect free expression, and ensure that such restrictions, where appropriate, go no further than necessary to give aggrieved parties effective relief.”

Tomorrow the Supreme Court faces the question of whether, and under what circumstances, Canadian courts can impose orders restricting Internet search results internationally. The BCCLA is intervening to assist the Supreme Court in balancing the competing free speech and access to justice interests raised by the case. The BCCLA proposes an approach that seeks to limit any impact on free expression, while ensuring that Canadian courts can grant Canadian litigants meaningful remedies where necessary and appropriate.

Josh Paterson, Executive Director of the BCCLA, stated his organization is working toward the reconciliation of what initially appear to be competing interests: “The Google case engages two important interests: the protection of freedom of expression on the Internet, and the importance of ensuring that Canadians who have been wronged are able to reduce the resulting harm through Canadian courts. Both are important. The BCCLA is asking the Supreme Court to adopt a balancing framework that ensures these types of restrictive orders are only granted when absolutely necessary, and are crafted to create the least possible impact on the public’s Charter right to free expression.”

The BCCLA is represented by Justin Safayeni and Carlo Di Carlo of Stockwoods LLP.

Read the BCCLA’s argument.

What:   Supreme Court of Canada will hear oral arguments in Google Inc. v Equustek Solutions Inc.

When: Oral arguments before the Court begin Tuesday, December 6, 2016 at 6:30 am PT/9:30 am ET.

Where: Supreme Court of Canada (Ottawa, Ontario)

Who:     BCCLA representatives are available in Ottawa for comment