Canada's top court backs order for Google to remove firm's website from searches • Hacker News Board

Re: Canada's top court backs order for Google to remove firm's website from searches

#151

Post by jussij » Thu, Jun 29, 2017, 2:04 AM UTC

cbhl wrote: post #10

ABCLAW wrote: post #4

Tremendously impactful decision, regardless of which side of the case you support. Interestingly, the majority addressed a Google argument centered upon concerns regarding the possibility of international censorship: "Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would res…

Should every court and country have the right to demand that things are de-indexed worldwide, now that Canada has done so? Does China have the right to demand Tiananmen Square be de-indexed? Germany and Nazi symbols? Russia and satire about Putin? North Korea? The United States? If not, how do we decide? The previous framework was, "you can demand whatever you want within your borders; if it is unacceptable, Google w…

Not quite the same thing, because as the judge said in the summation:

"This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders."

Re: Canada's top court backs order for Google to remove firm's website from searches

#152

Post by ABCLAW » Thu, Jun 29, 2017, 2:04 AM UTC

kodablah wrote: post #118

ABCLAW wrote: post #40

Earlier quoted context omitted.

I touched upon this, but honestly this is a very, very large subject that requires familiarity with the Berne Convention and TRIPS/ACTA in order to fully explain. In the Canadian decision, the de-listing order is contingent on that order not being contrary to compliance requirements elsewhere in the world. However, the SCC doesn't have knowledge of all of those laws, nor should it. Accordingly, it stated the burden u…

Can you help me understand something. Why do they have to cite laws this ruling is in contravention of instead of citing laws that Google is in convention with to prevent worldwide dissemination? One would think that you don't have to prove what the government proposes you do in region X to be illegal there, but rather prove that what you are already doing in region X to be legal there.

The Supreme Court did cite the test governing the provision of interlocutory orders. That test is well known law from RJR MacDonald. There's a bit of a blurb regarding the case in my comment below, but you can look up the case and you'll find the full test and commentary.

The government isn't proposing anyone do anything; A private party is, and asked for the court's help. The second private party is very clearly acting illegally and appropriating the value of the first party's brand. They've gone as far as to flee the province to try and dodge the court order which attempts to halt them from doing so. The first party asked google to take down their listings because those listings are the channel through which the illegal brand appropriation is occurring. The court agreed.

Google said they didn't want to comply with the order partially on the basis that there might be some compliance contradictions. The court said "Sure, but you didn't plead any evidence that that's the case. We judge what's in front of us. If you're serious, we have a mechanism to deal with it. Make an application like anyone else who wants to amend an interlocutory order. Bring us evidence there's another law which prohibits you from taking the listing down, and we'll amend the order".

The reason why courts only judge what's in front of them is so that the other side can actually argue against their points. If Google said "Law X from Country Y prevents us from doing that", the Respondent could reply "The only thing Law X from Country Y does is regulate how sweet twinkies can be, please stop lying to the court". The alternative, forcing the Respondent to prove that there is NO contradiction in every other country, is impossible. Google's response, however, requires 1 list distribution email in legal saying "Anyone have a problem in their country? Let me know". This is the "balance of convenience" portion of the RJR MacDonald test.

Re: Canada's top court backs order for Google to remove firm's website from searches

#153

Post by jussij » Thu, Jun 29, 2017, 2:08 AM UTC

oh_sigh wrote: post #134

naasking wrote: post #132

Earlier quoted context omitted.

> Should every court and country have the right to demand that things are de-indexed worldwide, now that Canada has done so? Canadian legal precedent doesn't apply in other countries. This isn't like setting a precedent within your own country.

Sure, but China would then have a good suspicion that they could coerce Google into doing this

But which court order would China site to back up that coercion?

For example no court is ever going to find Tiananmen Square never happened.

Re: Canada's top court backs order for Google to remove firm's website from searches

#154

Post by 19guid » Thu, Jun 29, 2017, 2:13 AM UTC

2preserve wrote: post #109

xxpor wrote: post #64

Earlier quoted context omitted.

Section 33 (the notwithstanding clause) makes most of the charter weak at best.

The Charter legalized prostitution, gay marriage, abortions, and assisted suicide. It also banned discrimination against homosexuals, extraditing people to countries where they'll be tortured, and warrantless searches of your house. And it recognized that Aboriginals had title to their land. But yeah, you're right, it's pretty weak. Section 33 has been used once in it's 35 year history, so I see your point.

Huh? Section 33 hasn't just been used once. Quebec used to invoke section 33 on every piece of legislation passed by the National Assembly.

Re: Canada's top court backs order for Google to remove firm's website from searches

#155

Post by mowenz » Thu, Jun 29, 2017, 2:28 AM UTC

>"We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods."

That precise argument may be well-intentioned, but it threatens free speech because it sets a precedent placing a burden of acceptable effects and results of free speech.

In other words, should Tiamen Square be de-indexed globally because free speech in China does not require it. Should torrent trackers be de-indexed--free speech does not require illegal file sharing, after all? What about bit torrent clients? Tor browser?

This site may or may not be rightfully de-indexed, but it is not because of some limitations of free speech.

Re: Canada's top court backs order for Google to remove firm's website from searches

#156

Post by tomcam » Thu, Jun 29, 2017, 2:35 AM UTC

naasking wrote: post #133

syshum wrote: post #104

Earlier quoted context omitted.

Except Free Speech is a Binary, and that is exactly what Canada is doing,... punishing thought crimes. >Lots of Americans like to think that as soon as you moderately curtail freedom of expression, you've crossed some threshold You have crossed a Threshold >and you're now North Korea. Nice strawman you have there..... >it's possible to have reasonable constraints on expression! Proving you do not have or support Free…

> Except Free Speech is a Binary, and that is exactly what Canada is doing,... punishing thought crimes. A "spoken crime" is not a "thought crime". There's no chip in your head, you're free to think whatever you like, even if you're not necessarily free to say anything you like.

"thought crime" is a term from Orwell's 1984--worth a read

Re: Canada's top court backs order for Google to remove firm's website from searches

#157

Post by 52-6F-62 » Thu, Jun 29, 2017, 2:36 AM UTC

protomyth wrote: post #41

52-6F-62 wrote: post #23

Earlier quoted context omitted.

Canadian here. Would you be so kind as to elaborate on your sweeping allegation regarding free expression? As it is, this just seems like some random stab that doesn't concern the topic at hand (which has far more immediate concerns tied to it). Section 1 of the Constitution of Canada (1982) outlines freedom of speech. Just about the only thing you can't do, outside of pursuing damages in the court system for specifi…

How do you square the Constitution of Canada with the Human Rights Commission that fines comedians and authors? https://en.wikipedia.org/wiki/Canadian_Human_Rights_Commissi...

This is a very tough subject. I don't think it will stop being tough anytime soon.

I'm going to put on my brute hat, so I might earn some downvotes for simplicity or unpopular opinion here but I'll take a stab at it anyway:

It seems that many people often conflate what makes a right and what makes a freedom. That is, people want what they call freedom to do something, but what they mean is that they want the right to do something without penalty. Sometimes the opposite is true. As well, being free to do something doesn't mean there is no potential for incurring a penalty or tax or that you are entitled to it.

In Canada, you are free to say whatever you want. If it comes into contrast with what is socially (and subsequently legally) acceptable at the time, then you may or may not face consequences for your actions.

In Ontario you have the right to a prescribed health care plan, nobody is free to remove this from you once registered. You are free to let your card expire, at which point institutions are free to charge you appropriately[1]. It is your freedom to remain without a health card, but it's your right to obtain a new one. Just because you're free to let your free health plan expire, doesn't mean you won't necessarily face consequences for it.

This just goes back to other commenters' point, though: Canadians and Americans tend to define something like this a little differently. I also think much of the 1st world seems to be satisfied with making mistakes along the way to a more ideal solution to the issue. It's my hope that the mistakes get smaller as we go along (and the peoples' standards grow higher, so criticisms grow stronger).

[1] In my experience this has never occurred, though. Mine has expired previously, and I've never been denied or charged according to OHIP.

Re: Canada's top court backs order for Google to remove firm's website from searches

#158

Post by btilly » Thu, Jun 29, 2017, 2:49 AM UTC

52-6F-62 wrote: post #141

btilly wrote: post #66

Earlier quoted context omitted.

Dual citizen here. Canadians and Americans understand free speech to mean different things, and from the US point of view, Canada does not actually have free speech. A standard example is that in Canada, a judge can impose publication bans on information presented in court. These bans can be temporary (don't report on the presented facts until the case is decided) or permanent (the rape victim may not be named). In t…

Thanks for chiming in. This comment was really helpful. The difference in the Bernardo case is that in Canada persons detained or charged with an offence are innocent until proven guilty. I'd wager that reporting on a case against a judge's orders creates the presumption of guilt, counter to the Canadian Charter of Rights and Freedoms. It is hardcoded into our law here, whereas it is not in the United States where it…

Here is the key difference.

The presumption in Canada is that there is a balance to be found between different kinds of rights, and the government can be trusted to do a reasonable job of finding it. I remember feeling that way, and wondering how a rational person could see it otherwise.

The presumption in the USA is that government is fundamentally untrustworthy and our enumerated rights exist as a protection against the government. While we may feel for the person who gets smeared by public rumor, we are scared of giving judges power to casually order the media around. This becomes in a sense a self-fulfilling prophecy. We hold our government to low standards, and our government fails to achieve them, which confirms the low opinion that we have of our government.

In the case of high profile cases, the Canadian approach is to say that the media can't report. Jurors show up each day, hear evidence, and go home. Then eventually they make a decision. The US approach is to select a jury that has not yet been biased by the case, and then put them in a hotel with no access to the media.

The controversy in the Bernardo case was because Canadian jurors could go home, turn on the TV, and hear an American station reporting on allegations that might or might not have enough evidence behind them to show up in court. So Canadians wanted American media to stop irresponsibly reporting on it. But how would YOU feel if another country wanted Canadian companies to follow THEIR laws? Yeah, that's exactly how Americans felt about the Canadian complaints.

Re: Canada's top court backs order for Google to remove firm's website from searches

#159

Post by KGIII » Thu, Jun 29, 2017, 3:00 AM UTC

52-6F-62 wrote: post #139

KGIII wrote: post #96

Earlier quoted context omitted.

I, too, have dual citizenship. This is something that would never happen in the US. https://news.vice.com/article/a-canadian-comedian-was-ordere... Basically, a comedian made a comment in reference to a kid who'd sought donations because he was dying. His quip was: "But five years later, he wasn't dead, he's not dying," he quipped on stage. "The little bastard, he's just not dying." For that, the courts are making hi…

It would happen in the United States if the victim decided to sue for libel, in which case I'd posture they'd pursue even higher damages (but that, I'll wholeheartedly admit, is pure speculation). Still in both cases, the public institution would have the final say in whether or not what was said should not be said. Edit: I was healthily corrected on this point. Not libel, but slander was what I was asserting as a po…

I don't think you understand. He was telling the truth.

Re: Canada's top court backs order for Google to remove firm's website from searches

#160

Post by treehau5 » Thu, Jun 29, 2017, 3:02 AM UTC

protomyth wrote: post #41

52-6F-62 wrote: post #23

Earlier quoted context omitted.

Canadian here. Would you be so kind as to elaborate on your sweeping allegation regarding free expression? As it is, this just seems like some random stab that doesn't concern the topic at hand (which has far more immediate concerns tied to it). Section 1 of the Constitution of Canada (1982) outlines freedom of speech. Just about the only thing you can't do, outside of pursuing damages in the court system for specifi…

How do you square the Constitution of Canada with the Human Rights Commission that fines comedians and authors? https://en.wikipedia.org/wiki/Canadian_Human_Rights_Commissi...

Now I understand why we have so many Canadian actors and comedians in America!