By Kristian Stout
Kristian Stout is the associate director for innovation policy at the International Center for Law and Economics, a non-profit global think tank.
There is a lot at stake in the struggle to control the proliferation of illicit material online. On one hand, criminal rings use intermediaries to traffic in illegal pharmaceuticals and to commit property theft and a host of other crimes. On the other hand, civil society advocates (and intermediaries themselves) raise the threat of mass censorship arising from attempts to impose obligations upon intermediaries that would require them to assist in deterring illegal activity.
Even after more than two decades of case law on the subject, questions relating to basic jurisdictional authority over intermediaries remain evergreen.
For example, the Canadian Supreme Court is currently considering a case, Google v. Equustek, addressing the claim that Canadian courts don’t have jurisdictional authority to require the search engine to de-index links to infringing content.
Equustek, a manufacturer of networking equipment, obtained an injunction against former distributors who were making knock-off products. Equustek found its initial victory difficult to enforce, and commenced a familiar game of whack-a-mole, whereby the company would ask Google to take down a particular infringing Canadian URL only to have a new one spring up shortly afterward, both inside and, increasingly, outside of Canada.
After a number of rounds of this game, Equustek asked Google to de-index all of the infringing URLs, both inside and outside of Canada, and Google balked. A Canadian appeals court subsequently sided with Equustek and required Google to de-index the infringing URLs.
A cornerstone of Google’s position in the case is that intermediary liability must be circumscribed based on a court’s geographic boundaries — otherwise, it argues, nations would be empowered to impose their own set of legal norms outside of their borders. But this view is plainly at odds with the long history of courts parsing jurisdictional concerns, as well as determining liability based on often complicated and ambiguous factors. As the Canadian Appeals Court judge noted:
“[T]he threat of multi-jurisdictional control over Google’s operations is, in my opinion, overstated. Courts must… consider many factors other than territorial competence and the existence [jurisdiction] over the parties… The extensive case law indicate[s] … that international courts do not see these sorts of orders as being unnecessarily intrusive.”
Although Internet intermediaries provide an extraordinary breadth of innovation, they are not immune from the normal operation of the law. Like it or not, Internet intermediaries certainly do operate in physical jurisdictions, and courts have a valid interest in protecting their citizens when a firm’s extraterritorial behavior affects them.
At the same time, although the Internet presents novel questions of the particular mechanisms of enforcement online, this doesn’t justify immunizing Internet firms from third-party court orders when they concern clearly illegal conduct that is within intermediaries’ control, but difficult for courts to address directly. In fact, the law has long dealt with out-of-reach offenders by enjoining the conduct of intermediaries — for example, by prohibiting local stores from selling foreign-manufactured counterfeit goods, or requiring that taverns prevent patrons from driving drunk. As Learned Hand wrote in 1930 in Alemite Mfg. Corp. v. Staff, a seminal case on this issue, although a court “cannot lawfully enjoin the world at large, no matter how broadly it words its decree … a person who knowingly assists a defendant in violating an injunction subjects himself to [injunctions by a court].”
The Internet may make this a bit more complex, but it’s a difference of degree, not of kind. And, as the Equustek court observed, “it is the world-wide nature of Google’s business and not any defect in the law” that makes it such that Google may have to assist courts in a variety of jurisdictions when faced with bad actors.
The point here is not that the unique nature of Internet intermediaries should be ignored; it is of course important to understand that intermediaries’ activities implicate a whole range of substantive issues that operate differently in different jurisdictions. Rather, the point is to stress that the proper approach is one that balances competing interests, not least of which is courts’ ability to effectively enforce their orders, even when that means issuing orders with extraterritorial effect.
The views expressed by Contributors are their own and are not the views of The Hill.
Originally posted on The Hill