The Race to the Bottom: Comity and Cooperation in Global Internet Takedown Orders

Abstract

In Google v Equustek, the Supreme Court of Canada upheld an injunction requiring Google to delist certain websites from its search results worldwide. The decision raised the spectre of nations using their domestic laws to control information available to Internet users around the globe. The possibility that the case could set a precedent to be repeated by foreign courts, to the detriment of freedom of expression, was a concern raised not just by Google, but by numerous civil society organizations and commentators. The same concern has also arisen with respect to a number of similar cases outside of Canada. This article argues that the fear that such cases might set a precedent that will encourage more restrictive global injunctions is a serious concern, and may already be happening. It explores how this international cross-pollination can occur either through persuasive authority or through reciprocity. In order to mitigate this possible threat to freedom of expression on the Internet, this article proposes that Canadian courts should make use of the principle of comity to create a robust analysis for extraterritorial Internet take-down orders that considers both domestic and foreign interests. Comity is ideally suited to this as it is not a prescriptive rule, but rather a tool that helps guide courts’ discretion and allows for norm generation across borders. This article considers how Canadian courts could employ comity to negotiate international norms around global Internet take-down orders that achieve the balance between protecting domestic rights and preserving the open Internet.