Google did not have the best month in the Courts

Sure, everyone is talking about Facebook this month (and last month, and probably many months before that, who knows, I barely pay attention to this stuff), but did you know Google is having its own issues in April, but in the courts? Let me lexplain what’s happened.

I’ve got two Google cases from April I’d like to tell you about, one in BC and one in merry olde England. They are very important, so pay attention. But at the same time, they are kind of both easily dismissed for their own reasons, so we can dispatch of this blog post pretty quickly! Win-win!

1. BC Court tells Google to go F*** itself

Now, you may recall that back in November I wrote perhaps my best headline ever about what has come to be known as “the Equustek Case” – California Court to Supreme Court of Canada: F*** You (I’m paraphrasing). Well this case is part of that, so let the expletives continue!

So to recap, the Supreme Court of Canada upheld the BC Court of Appeal decision (which had upheld the lower BC court order) that a worldwide interlocutory injunction should be upheld, forcing Google to delist several websites from its search results that were selling infringing goods. But Google was not happy that a puny Canadian Court (Supreme Court, pshaw!) could make a worldwide order, so it went into a California court which agreed, barring that order from having effect in the U.S.

So with that California order in hand, Google want back to BC and here we are again. In a decision from April 16, that lower BC court which made the original order was asked to re-think this whole thing, because another court (the California court) had found the order “offensive to [Google’s] core values”, which the BC Court of Appeal had said might be a factor in issuing (or denying) such an order, because the order may violate Google’s freedom of speech (a “core value”). But in this new decision, the BC Court said “meh, not so much” and Google was DENIED:

there is no suggestion that any U.S. law prohibits Google from de-indexing those websites, either in compliance with the injunction or for any other reason. Absent the injunction, Google would be free to choose whether to list those websites and the injunction restricts that choice, but injunctions frequently restrain conduct that would otherwise be prima facie lawful

(…)

I assume rights guaranteed by the First Amendment can be regarded as core values, but Judge Davila [Ed. – the judge in California] expressly declined to rule on Google’s submissions that its First Amendment rights were violated by the injunction

Now, there is plenty of other stuff about the law of injunctions, what “material change in the facts or circumstances that gave rise to the original order” may have occurred to force the BC Court to alter the order, and a possible change in the law of injunctions, but none of that really gets anywhere. Also, the important point here, and the reason I said further up that we can pretty much dismiss this, is that this whole (3-4 year!) mess was from an interlocutory injunction. Meaning that we haven’t even gotten to the actual case yet! The actual trial is going on now, so the BC Court basically says just wait, Google:

At the time this application was argued, the trial was imminent. Google’s scepticism about whether the trial would go ahead was reasonable in light of the previous adjournments, but the trial is now underway. The injunction will soon cease to be in effect, subject to any further application the plaintiffs may bring, therefore I do not consider it necessary to deal with the delay argument.

As I wrote in my very first Equustek post, “This hugely important Google case will be going on for a while…”. See you back here next month, next year…

2. Google loses another “Right to be Forgotten” case

Do you remember the right to be forgotten? Hey-yo! Anyway, of course you do, I’ve got 5 posts (now 6) on the subject. The important one is from May of 2014, which started this whole deal (the “Google Spain” case). In that post, I explained how the European Court of Justice created the “right to be forgotten”, ordering Google to delist (word of the day) some websites from their search results which had some old, possibly irrelevant, information about a dude who wanted it erased from the internet. He won! Google de-listed in Europe. Many procedures and cases about the RTBF (as we call it) followed.

But for the first time, a case about the RTBF made its way into the British courts, which is important because, uh, Britain. In fact , it was two different cases, but the same judge heard them both and gave one ruling covering both.

The cases involved two people, called NT1 and NT2. Catchy! In fact the people were granted anonymity, because they are trying to be forgotten, dammit! Let’s let the Court introduce what’s up:

These two claims are about the “right to be forgotten” or, more accurately, the right to have personal information “delisted” or “de-indexed” by the operators of internet search engines (“ISEs”).

The claimants are two businessmen who were convicted of criminal offences many years ago. The defendant, (“Google”), needs little introduction. It operates an ISE called Search which has returned and continues to return search results that feature links to third-party reports about the claimants’ convictions. The claimants say that the search results convey inaccurate information about their offending. Further, and in any event, they seek orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information is not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights

Long story short, the Court ordered that Google must delist for NT2, but not NT1. There were many reasons, but basically it comes down to NT2 had a shorter sentence, was contrite and remorseful for his crime (while NT1 was not), and it was just a one-off not so serious crime (compared to NT1).  Anyway, there is a very detailed discussion of the Google Spain case and its “balancing” approach to the RTBF, the principles and law behind it, the European authorities’ (the “Working Party”‘s) 13 criteria / factors to analyze it, and lots of good legal stuff. Here is someone else’s very good detailed analysis of all of that.

Now, you are asking yourself (and me) – “hey Allen, why are you not giving us all your own detailed legal analysis that you’ve become famous for?” I would reply that I am famous for trite comments, boyish good looks that play well on the radio, and snark. But with that said, there is a damn good reason we are not diving into this. Let the judge explain:

I am not sure that the answers matter, either for this case or more generally. Everyone agrees that I must address the Google Spain balancing exercise at some point, with due regard to the Working Party criteria. And this case is being determined in the twilight of the DP Directive regime, with the first light of the GDPR already visible on the horizon. It seems unlikely that my decision will have an impact on other cases.

Sad face, Mr. Judge! Now, I admit this comment was made with regard to a particular aspect of the Court’s analysis, but in my opinion it is as important as fuck. Pay attention here. On May 25, 2018, the European General Data Protection Regulation, or “GDPR”, comes into effect. The GDPR contains, in its Article 17, a codification of the RTBF. Article 17 lists its own set of factors as to when the RTBF should apply and how it should be analysed. This decision was based on the Google Spain case, which was based on the “Directive 95/46/EC” (the “DP Directive regime” in the quote above), which the GDPR is replacing.

Got that? This entire decision was based on law that is about to be replaced by something else, which has very specific details about how to treat the subject at hand (the RTBF), which are different than the previous law (and the famous case based on that law). NOW, I am not saying they are completely different, but I am not saying they are the same! So as the judge himself admits, maybe this “landmark case” (per The Guardian)  is destined for the dustbin (British English!) of history.

Superterriffic Funtime Analysis Hour

Google controls the internet. People will fight Google in the courts. Get used to it.