Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
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The U.S. District Court for Northern California granted Google an injunction to prevent enforcement in the U.S. of a Canadian court order requiring it to remove certain websites from its global search results. The Canadian court order had been made in favor of Equustek on its application to have the websites from Datalink, a rival company it had sued for misappropriation of trade secrets, delisted from all Google websites worldwide. The U.S. Court reasoned that Google was immune as an interactive service provider under Section 230 of the Communications Decency Act, preventing enforcement of the Canadian court order in the U.S.
Equustek Solutions, Inc., (Equustek) is a Canadian computer hardware seller and distributor. In 2011, Equustek filed a lawsuit in Canada against rival Datalink as well as other individual and corporate defendants (Datalink). Equustek alleged that Datalink misappropriated Equustek’s trade secrets with the help of a former Equustek engineer, as well as committing other illegal acts and unfair sales practices. The primary defendant fled Canada and refused to comply with several court orders, and had yet to be apprehended by the time of the current case.
Equustek asked search engine company Google, headquartered in Mountain View, California to remove Datalink websites from the search engine’s search results. Google removed more than 300 Datalink sites from its Canadian search results at www.google.ca, but only after Equustek requested and the court granted an order requiring it to do so. Google refused to remove Datalink’s websites from its global and international search engine results (such as on google.com) beyond its Canada-specific results. Equustek requested a court order requiring that Google remove Datalink’s websites from its global search results, which the Superior Court of British Columbia granted (“the Canadian court order” or “global removal order”). Google appealed the global removal order to the Court of Appeal for British Columbia and the Supreme Court of Canada, both of which affirmed the trial court’s order that Google remove, “delist” or “deindex”, Datalink’s websites from its global search results.
On June 24, 2017, Google filed this lawsuit in the Northern District of California, the district where Google’s headquarters are located. Google requested a declaratory judgment that the Canadian court order is unenforceable in the U.S. and an order preventing enforcement of it. Then Google filed a motion for preliminary injunctive relief — a request for a court order before trial — to prevent enforcement of the global removal order in the U.S.
Google argued that the Canadian order is unenforceable in the U.S. because the order violates the Communications Decency Act’s immunity for interactive service providers on the internet, conflicts with the First Amendment to the U.S. Constitution, and offends principles of international comity — respect and enforcement of other countries’ laws. Equustek did not file an opposition brief to Google’s motion for a preliminary injunction.
Davila, J., entered the order of the Court. To obtain a preliminary injunction, a party is required to show:
The Ninth Circuit uses a “sliding scale” approach to assess the propriety of a preliminary injunction, in which the factors are balanced so that a stronger case for one factor may offset a weaker factor.
The majority of the discussion concerned the first factor, whether Google would likely succeed on the merits of its claim that the global removal order is unenforceable. The Court first examined Google’s argument under the Communications Decency Act (CDA). Section 230 of the CDA (Section 230) provides immunity from “content created by third parties” for “providers of interactive computer services.” (Section 230, CDA) In particular, such interactive service providers shall not be treated as the “publisher” or “speaker” of information or content posted by another party. Section 230 of the CDA exists to protect against “the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.” (Zeran at 330) Congress found it undesirable to impose liability for potentially injurious speech on interactive service providers serving as mere intermediaries for the speech of others.
To be eligible for immunity as an interactive service provider under Section 230, a party must show:
(at 4, quoting Klayman at 1357)
The Court found Google satisfied all three elements for immunity quite easily. First, Google is clearly a provider of an interactive computer service that enables users to access a computer server via its applications and systems, a conclusion supported by a multitude of cases across the U.S. Second, Datalink provided the information in question in the case by creating the allegedly offending websites the Canadian court ordered de-indexed. Google merely indexes third-party websites it finds by crawling the web, allowing users to discover the sites by use of Google’s search engine. Google’s search engine provides access to others’ content, but does not provide or create the content itself. Third, the global removal order would effectively hold Google liable as the publisher or speaker of the content on the Datalink websites. U.S. Ninth Circuit precedent has shown that when a court orders an intermediary provider to remove third-party content — as the Datalink sites clearly are — the court is treating the intermediary as a “publisher.” The Canadian court is effectively imposing liability on Google for Datalink’s speech – not its own.
By meeting all three elements, Google demonstrated it is entitled to immunity for Datalink’s speech under Section 230 of the CDA. Therefore, Google is likely to prevail on the merits of its argument that the Canadian court order violates the CDA.
The Court spent little time discussing the second and third factors for obtaining a preliminary injunction. It said that Google is harmed because the Canadian order restricts activity that Section 230 protects; further, that the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.
Finally, the Court said that a preliminary injunction serves the public interest, the fourth requirement of the test. The U.S. Congress enacted Section 230 of the CDA to provide immunity for interactive service providers recognizing that “free speech on the internet would be severely restricted if websites were to face tort liability for hosting user-generated content.” Congress sought to make free speech on the internet “unfettered and unregulated,” preserving “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” (Batzel at 1027, CDA Section 230)
In summary the Court said that the Canadian court order “undermines the policy goals of Section 230 and threatens free speech on the global internet.” Further, because Google was likely to prevail on the merits of its CDA claim, the Court did not need to address its arguments based on the First Amendment and international comity.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision reinforces the policy behind the Communications Decency Act (CDA) which was enacted by Congress in 1996 to prevent the suppression of freedom of expression by extending tort-based liability to intermediaries in respect of third-party content posted on their platforms. Absent such provision, interactive service providers would likely limit speech on their platforms or stop providing forums for speech altogether rather than risk liability for content from third parties. Such an environment would lead to the removal or prevention of large swaths of lawful speech on the internet.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Northern District of California found the Canadian court order to Google unenforceable in the U.S. While it is not a formal opinion, and a district court’s order is not binding on other courts across the U.S. or in other jurisdictions, the order is likely to have persuasive value in the U.S. and elsewhere.
The U.S. is a leader in both free speech rights and the treatment of intermediaries as immune from liability. Furthermore, the Northern District of California is home to Silicon Valley, Google, and several other large technology companies who facilitate speech on the internet and could qualify for immunity under Section 230 of the CDA.
Given that Equustek did not file an opposition brief, it is unlikely that it can appeal the Court’s decision — giving the decision the effect of finality.
Let us know if you notice errors or if the case analysis needs revision.