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The Role of Courts in Shaping Internet Policy

· July 30, 2018

Internet policy is shaped domestically and globally by a variety of legal, policy, and business developments.  Lately, foreign courts have been having a significant role in shaping how the law functions on the Internet.  New conflict of laws questions arise as courts increasingly impose injunctions that recognize no borders on service providers.  Internet services are faced with serious questions when complying with these orders — including orders they have received as third parties, without being a party to the case.  Compliance with an order in one country may impact content viewed elsewhere, and practices that are lawful in one country may allow foreign courts to effectively export their own laws and frameworks abroad.

On Friday I participated on a panel at IGF-USA that focused on these issues, exploring the role of courts in “the development and application . . . of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”  The panel was a thoughtful conversation about the role of courts around the world in shaping public policy for the Internet, and covered a number of substantive legal areas, including intellectual property, the “right to be forgotten” (RTBF), and the EU’s General Data Protection Regulation (GDPR), with a variety of perspectives from academia and civil society.  A video of the panel is available here.

The panel coincided with CCIA’s release on Friday of an updated version of its Modernizing Liability Rules for Global Digital Trade paper, which illustrates how the rise of extraterritorial judgments further complicates operation of intermediary liability frameworks.  The paper shows how enforcing extraterritorial judgements on U.S. services not only imposes significant compliance costs, but also opens up online intermediaries to greater degrees of liability in countries with conflicting laws.  Important domestic policy choices pertaining to intermediaries are threatened when U.S. courts are asked to enforce foreign judgments that conflict with U.S. law.

Several case studies are included in the paper to demonstrate this phenomenon.  In the Equustek case, the Canadian Supreme Court upheld an injunction against Google (a non-party to the lawsuit) to de-index search results “worldwide.”  While a U.S. district court refused to enforce the injunction within the U.S., the Canadian Supreme Court was unconvinced and upheld the injunction.  The court’s reasoning has permitted a trial court in British Columbia to determine what every citizen in the world can or cannot see, merely by issuing an injunction against a non-party.  This case will have far-reaching consequences, as others have noted the broad reasoning in the court’s decision which opens up claims for defamation and privacy, and to de-index entire websites rather than remove links.

Injunctions issued pursuant to the “right to be forgotten” have also taken on an extraterritorial visage.  A pending case in France seeks to enforce the RTBF on a global basis by asserting that search operators must remove relevant links from all domains under its control, not only those in operations of the country where the claim originated.  The French court has referred questions to the European Court of Justice to determine whether the RTBF must be respected worldwide.  French authorities could have the ability to constraints what non-EU users are able to access under their own legal standards.

While trade rules alone may not solve the issue of extraterritorial judgments, they play a key role in harmonizing liability frameworks to reduce the frequency of conflict of laws issues.  In the paper and on the panel, CCIA advocated that trade rules should include commitments to uphold critical intermediary liability protections in the context of intellectual property and non-intellectual property related speech.

Digital Trade

Companies rely on clear, predictable rules that facilitate digital trade to export their products and services around the world. These rules include balancing the competing interests between encouraging investment and enabling information access; promoting the free flow of information online; and maintaining balanced intermediary liability regimes.