Extra-Territoial Jurisdiction in the Internet Age: Reflecting on the Effective Emasculation of Domestic Courts on the Heels of Equustek v. Google

By: Karen Eltis.

In a very recent yet particularly discquieting  case, foreshadowing that which is to come, the District Court (for the Northern District) of California issued an order enjoining a Canadian company from enforcing a worldwide de-indexing order that the Supreme Court of Canada had granted against Google a few months prior[1].  The injunction extended in a patent dispute required Google to delist all websites that sold products in violation of Equustek’s intellectual property right regardless of national provenance since, as Canada’s highest court opined « [t]he Internet has no borders – its natural habitat is global »[2].

Notwithstanding this assured reality, traditional assumptions of law remain intimately connected to territory. And the Supreme Court of Canada’s unthinkable ‘reversal’ in a lower court across its border adeptly illustrates this increasingly prevalent dissonance between most legal frameworks’ uncompromisingly firm roots in territory and the borderless character of cyberspace.

 Reflecting the significant change of circumstances alluded to herein and presumably alive to the conflict of laws vaccum engendered by emerging technologies, Google turned to a court in its home state of California, which, as noted, proceeded to grant injuctive relief from the Canadian decision. It held (on the basis of article 23 of the Communications Decency Act – although Google had foremost plead the First Amendment) that the global injunction would not have effect beyond Canada’s narrow borders, thereby authorizing Google to ‘relist’ the impugned search results outside of Google.ca, notwithstanding the Canadian ruling.

Needless to say, such a decision not only undermines Canada’s highest court for practical purposes (e-commerce being worldwide by nature) but renders its verdict for all intents and purposes without effect. For in a borderless world what does it mean to delist results only within given ‘borders’?

It further substantiates the Canadian Court’s very apprehension in an earlier case Douez v. Facebook[3] that domestic policy choices enshrined in law and normative frameworks would ultimately be rendered meaningless (or at the very least unenforceable) in the Internet age, where most human interactions are in cyber rather than confined physical space. [4] That difficulty is compounded when the norms at stake are constitutional values, as in Freedom of Expression attracting specific attention in Equustek.

If nothing else then, Equustek underscores the state’s inability to effectively regulate conduct in cyberspace, which defies its brick and mortar borders. This in turn inevitably creates a legal vacum where the most ubiquitous form of conduct of  borderless ilk is absurdly governed by land-linked norms, ill-suited to cyberspace interactions.

As noted in a previous piece, when state norms do not -or cannot -effectively regulate borderless conduct, or cyberspeech in particular, private actors or their algorithms inevitably step in, thereby usurping government action, however involuntarily. When domestic courts in turn attempt to enforce local norms and hold these actors accountable to them they are inhibited from so doing beyond their borders,  as demonstrated in Equustek. This by an dated territorial approach to confict of laws that surely needs to be revisited.

 

[1] Google LLC v. Equustek Solutions Inc. 2017 WL 5000834 (N.D. Cal. Nov 2, 2017) Google Inc. v. Equustek Solutions Inc., 2017 SCC 34.

[2] Google In. v Equustek Solutions Inc (2017 SCC 34) para 41.

[3] Douez v. Facebook, Inc., 2017 SCC 33 online : https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16700/index.do

[4] There the divided Court elected not to enforce a online consumer arbitration clause due to the strong public interest in having constitutional (and quasi-constitutional claims) adjudicated in Canadian courts for « social-media companies cannot simply demand that their users sign away their rights to be heard in Canadian courtrooms. »https://www.theglobeandmail.com/news/national/supreme-court-gives-thumbs...