Search Engines and Global Takedown Orders: Google v Equustek and the Future of Free Speech Online

Abstract

The Supreme Court’s decision in Google v Equustek (2017) to uphold a global content take-down order remains controversial and consequential to wider debates about governing the internet. This paper examines the Court’s underlying assumption – a common view in take-down jurisprudence – that where a portal directs a critical mass of users to a harmful site, it facilitates harm and no longer engages in valuable speech. This ran contrary to the Court’s more considered view of links in Crookes v Newton (2011) as a form of mere reference and valuable per se for enabling the net as a public forum. This paper argues the Court should have applied its theory from Crookes to search engine links as no different in principle from others, while conceding that, at scale, links that merely refer can facilitate harm. Drawing on the Copyright Act and the Manila Principles on Intermediary Liability, the paper proposes a test for take-down orders that strikes a better balance between free speech and private interests.