Can one coun­try set Google’s rules for the rest of the world?

Irish Independent - Business Week - - BUSINESSWEEK TECHNOLOGY -

DOES Canada own the in­ter­net? The ques­tion may sound like a joke, but it’s the se­ri­ous chal­lenge pre­sented by a Cana­dian Supreme Court de­ci­sion is­sued last week. The court or­dered Google to dein­dex search re­sults that were let­ting one side of a law­suit vi­o­late the in­tel­lec­tual prop­erty rights of the other – not just in Canada, but world­wide.

The court tried to avoid the dif­fi­cult free-speech is­sues by say­ing those weren’t in­volved in the case. But what makes the prece­dent so im­por­tant is that it raises the core prob­lem of who gets to reg­u­late the in­ter­net by or­der­ing around search com­pa­nies and so­cial me­dia.

The US Supreme Court re­cently clar­i­fied that it thinks the First Amend­ment mostly blocks the US gov­ern­ment from such reg­u­la­tion. That leaves other gov­ern­ments like Canada – or Ger­many, which last Fri­day en­acted leg­is­la­tion that forces so­cial me­dia en­ti­ties to re­move un­wanted con­tent.

A good way to think about reg­u­la­tion in the in­ter­net age is to con­sider two rad­i­cally-dif­fer­ent views about who should be do­ing it, if any­one.

In coun­tries like the US, the in­ter­net is treated as a freespeech zone made up of “vast demo­cratic fo­rums”, as Jus­tice An­thony Kennedy said in a re­cent opin­ion. The fed­eral gov­ern­ment and the states can’t do much to reg­u­late what is said in that space.

At the same time, the means we use to ac­cess that vast fo­rum, such as search en­gines like Google or so­cial me­dia plat­forms like Face­book, are treated un­der US law as pri­vate en­ti­ties with free-speech rights of their own. That means Google and Face­book can shape ac­cess to con­tent as they please, sub­ject only to mar­ket pres­sures. The US First Amend­ment pro­tects their right to do so.

In sharp con­trast to the US model is the ap­proach ex­em­pli­fied by the Cana­dian de­ci­sion, as well as by Euro­pean laws. Ac­cord­ing to this view, gov­ern­ments are en­ti­tled to reg­u­late what hap­pens on the in­ter­net in or­der to pro­tect their cit­i­zens ac­cord­ing to their own laws.

And those laws in­clude var­i­ous bans on hate speech and en­force­ment of pri­vacy laws. It’s im­por­tant to re­mem­ber in this con­text that the US is a free-speech out­lier, em­brac­ing un­fet­tered dis­course in ways most coun­tries – in­clud­ing free ones – con­sider mis­taken and even wrong­headed.

In the Cana­dian opin­ion, Google v Equ­ustek, a Bri­tish Columbia tech­nol­ogy com­pany was try­ing to block an­other com­pany from re­selling its stolen in­tel­lec­tual prop­erty via web­sites on servers in un­known lo­ca­tions. To pro­tect the com­pany, a trial court or­dered Google to dein­dex, or block, the preda­tor’s web­site world­wide.

Google was will­ing to dein­dex in Canada, but it ob­jected to be­com­ing the means by which the Cana­dian court sought to en­force its or­der through­out the world. Among other things, Google said that it was pos­si­ble the victim com­pany couldn’t have been granted the or­der in other coun­tries and that dein­dex­ing might force Google to vi­o­late the laws of some other place.

In­vok­ing a hot-but­ton term in in­ter­na­tional law, Google said the world­wide or­der would vi­o­late “comity” – roughly, the no­tion that courts in one coun­try shouldn’t in­ter­fere with the laws of other coun­tries. To in­ter­na­tional lawyers, a comity vi­o­la­tion is se­ri­ous busi­ness, con­jur­ing vi­sions of com­pet­ing ju­ris­dic­tions fight­ing le­gal bat­tles across bor­ders.

In an opin­ion by Jus­tice Ros­alie Abella, the Cana­dian court ruled 7-2 that Google had to com­ply. Abella pointed out that Google hadn’t ac­tu­ally shown that dein­dex­ing would break any laws or limit free­dom of ex­pres­sion. If in a fu­ture case Google found it­self in such a bind, Abella said, Google could bring that up. “We have not, to date,” she com­mented acer­bically, “ac­cepted that free­dom of ex­pres­sion re­quires the fa­cil­i­ta­tion of the un­law­ful sale of goods.”

Abella’s dis­tinc­tion means that Canada, at least, might baulk at a world­wide in­junc­tion that blocks what other coun­tries would count as free speech.

But that won’t be true else­where. The pro­posed Ger­man law won’t work if it only lim­its what is search­able on Ger­man Google. In­ter­net reg­u­la­tion has to be univer­sal to work.

That sets up a fu­ture of con­flict be­tween coun­tries that want to reg­u­late ef­fec­tively within their bor­ders and those that, like the US, want to keep in­for­ma­tion flow­ing freely with­out gov­ern­ment in­ter­ven­tion.

The par­tic­u­lar anom­aly is that Google could be reg­u­lated within the US by for­eign na­tions – while US law would pro­tect it against do­mes­tic reg­u­la­tion.

Ad­vo­cates of a free in­ter­net warn of a race to the bot­tom, in which the most re­stric­tive coun­tries block free speech ev­ery­where. That’s con­ceiv­able but un­likely.

Right now, Google and Face­book have the ca­pac­ity to re­sist be­ing bul­lied by coun­tries that don’t re­spect free speech and might want to make ac­cess to their mar­kets de­pend on giv­ing up free­dom else­where.

But what could hap­pen is some­thing more like a par­tial jog to the mid­dle – where plat­forms com­ply with rea­son­able coun­tries’ rea­son­able speech lim­i­ta­tions world­wide. That could mean adopt­ing lim­its on hate speech, for ex­am­ple, or pro­tect­ing pri­vacy.

In the US, af­ter all, those pri­vate plat­forms have the right to adopt those re­stric­tions by choice. So it wouldn’t be un­law­ful for them to fol­low, say, Cana­dian or Ger­man guide­lines.

In this sce­nario, Canada re­ally would rule the in­ter­net, or at least the plat­forms we use to ac­cess it. Would that re­ally be such a bad out­come?

(Bloomberg)

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