French Regulating Body Says Google Must Honor Right To Be Forgotten Across All Of Its Domains

from the CNIL:-WE-ARE-THE-WORLD dept

France's privacy regulator thinks it should be able to control what the world sees in Google's search results. Back in June, the regulator said Google must apply the "right to be forgotten" ruling across all of its domains, not just Google.fr, etc.

Google rightly responded, "Go fuck forget yourself" (but in appeal form), as Jennifer Baker of The Register reports.

Google had argued that around 97 per cent of French users use Google.fr rather than Google.com, that CNIL was trying to apply French law extra-territorially and that applying the RTBF on its global domains would impede the public’s right to information and would be a form of censorship.

But France seems intent on standing up for the 3%. The regulating body has rejected Google's appeal and declared its intent on bending the world to its interpretation of the RTBF ruling. As it sees it, what's good for France is good for the rest of the connected world. And since all roads lead through Google, a deletion honored at Google.fr must also be delisted at Google.com

From the ruling:

Geographical extensions are only paths giving access to the processing operation. Once delisting is accepted by the search engine, it must be implemented on all extensions, in accordance with the judgment of the ECJ.

If this right was limited to some extensions, it could be easily circumvented: in order to find the delisted result, it would be sufficient to search on another extension (e.g. searching in France using google.com) , namely to use another form of access to the processing. This would equate stripping away the efficiency of this right, and applying variable rights to individuals depending on the internet user who queries the search engine and not on the data subject.

In any case, the right to delisting never leads to deletion of the information on the internet; it merely prevents some results to be displayed following a search made on the sole basis of a person’s name. Thus, the information remains directly accessible on the source website or through a search using other terms. For instance, it is impossible to delist an event.

Yes, delisting at one domain means it's still accessible at others. That's the way these things are supposed to work. Perhaps the government bodies involved in this decision might have considered the unintended side effects before deciding RTBF was a great idea with minimal flaws.

The general tone of the regulator's response is that Google is being deliberately obtuse when it claims compliance at Google.fr (for example) is following the letter of the law. The French governing body wants Google to follow the spirit of the law, which means basically anticipating various governments' next moves after another hole in their "forget me now" plan presents itself.

CNIL then makes this disingenuous statements about its decision.

Finally, contrary to what Google has stated, this decision does not show any willingness on the part of the CNIL to apply French law extraterritorially. It simply requests full observance of European legislation by non European players offering their services in Europe.

If this is what it's actually requesting, complying at French domains would be all that was required of Google. But it isn't. It's asking for "full observance" and then leaving it up to Google to comply with requests in countries where the Right to Be Forgotten isn't recognized as an actual "right."

Those behind the push for a right to be forgotten should have seen this coming. They also should have recognized the limits of their desires. Pushing Google to delist any RTBF request across all domains allows Europe to decide what can and can't be seen (at least through Google's search engine) by the rest of the world. And yet, the regulating body calling for this ridiculous "solution" has the gall to claim it's not actually applying its decision extra-territorially, but that Google's global reach somehow obliges it to do this "voluntarily," if only to maintain the consistency regulators had in mind when they started enforcing the "right to be forgotten."

The deflectionary reminder that the content isn't actually deleted from the web is a cheap dodge. What's never acknowledged in these rulings is that removing links from search engine results is pretty much the same thing as removing it from the original websites. If search engines can't "find" it, it ceases to exist for all intents and purposes. Giving people the power to selectively edit the web without even acquiring a court order was -- and is -- a bad idea. The EU continues to assert the general public has the right to rewrite their own history, and now, with decisions like these, it's forcing the rest of the world to play along with these edited narratives.

Filed Under: france, free speech, global censorship, jurisdiction, right to be forgotten
Companies: google

Why Patent Trolls Love East Texas... And Why Congress Needs To Fix It

from the is-there-a-patent-on-jurisdiction-shopping? dept

Back in 2011, This American Life toured an office building in Marshall, Texas, and found eerie hallways of empty offices that serve as the 'headquarters' of patent trolls. For many, that was the first introduction to the strange world of the Eastern District of Texas, its outsized role in patent litigation and, especially, its effective support of the patent troll business model. Trolls love the Eastern District for its plaintiff-friendly rules, so they set up paper corporations in the district as an excuse to file suit there. Meanwhile, defendants find themselves dragged to a distant, inconvenient, and expensive forum that often has little or no connection to the dispute.

The remote district's role has only increased since 2011. The latest data reveals that the Eastern District of Texas is headed to a record year. An astonishing 1,387 patent cases were filed there in the first half of 2015. This was 44.4% of all patent cases nationwide. And almost all of this growth is fueled by patent trolls.

Happily, lawmakers have finally moved to restore some balance. The latest version of the Innovation Act in the House includes language that would make it much harder for trolls to file in the Eastern District of Texas. The proposal goes under the decidedly mundane name of "venue reform" but it could actually be crucial to the effort fix our broken patent system.

The Luckiest Court in the Universe

The Eastern District of Texas is a federal court district running along the Texas-Louisiana border. The district covers a largely rural area without much of a technology industry. It is just one of 94 federal district courts. (Some states, like Vermont, have a single federal district, while others, like Texas and California, have as many as four.) If patent cases were distributed evenly among the federal district courts, each one would have received about 33 cases so far this year – a far cry from the 1,387 filings in the Eastern District of Texas.

Accident? We don't think so. In fact, we ran a calculation to see how likely it is that at least 1,387 of 3,122 patent cases might end up there by chance. This was the result:

This probability is so vanishingly small that you'd be more likely to win the Powerball jackpot 200 times in a row. Obviously, something other than chance is attracting trolls to this remote district.

Now that folks are taking notice, some Eastern District of Texas jurists are feeling a bit defensive. Former Judge Leonard Davis, for example, recently said: "To say the Eastern District is responsible [for the patent troll problem] is to say that the Southern District of Texas is responsible for immigration problems." This is nonsense. The Southern District of Texas gets immigration cases because it sits on the U.S.-Mexico border. There is no equivalent reason for the Eastern District of Texas to be a hotbed of patent litigation. To understand why the district sees so much patent trolling, we need to look deeper.

How We Got Here

The Eastern District of Texas was not always so popular. In 1999, only fourteen patent cases were filed there. By 2003, the number of filings had grown to fifty-five. Ten years later, in 2013, it was 1,495.

This massive rise in litigation followed the appointment of Judge T. John Ward in 1999, and his drive to create local patent rules. Judge Ward's rules, while similar to patent rules in other federal districts, had some additional plaintiff-friendly features such as a compressed discovery schedule and a short timeline to trial. This so-called "rocket docket" attracted patent plaintiffs eager to use the compressed schedule to pressure defendants to settle. For those cases that went to trial, the district got a reputation for huge patent verdicts. As one commentator explained, the Eastern District's "speed, large damage awards, outstanding win-rates, likelihood of getting to trial, and plaintiff-friendly local rules suddenly made [it] the venue of choice for patent plaintiffs."

The explosion in patent litigation promptly led to a burst of new economic activity in East Texas. As the BBC wrote, Marshall is a "sleepy town kept busy with patent cases." The patent litigation boom creates business for hotels, restaurants, trial graphics services, copying, expert witnesses, jury consultants, court-appointed technical advisers, and, of course, lawyers. In other words, patent litigation has become important to the economic health of the communities surrounding the courthouse. But the federal courts don't exist to generate business for a particular region.

Tipping The Scales on Both Procedure and Substance

So why are these plaintiff-friendly rules so important? First, the rules impose particular burdens on defendants. If a patent case proceeds to discovery—the process whereby parties hand over information potentially relevant to the case—it will usually be more expensive in the Eastern District of Texas. This is because the local discovery order in patent cases requires parties to automatically begin producing documents before the other side even requests them. In patent troll cases, this imposes a much higher burden on defendants. Operating companies might be forced to review and disclose millions of documents while shell-company patent trolls tend to have very few documents. Trolls can exploit this imbalance to pressure defendants to settle.

Second, the rules make it harder to eliminate cases early. The Supreme Court's decision in Alice v CLS Bank invalidated many of the low-quality software patents favored by patent trolls. But this only helps defendants if they are able to get a ruling to that effect from the judge overseeing their case. Judges Rodney Gilstrap and Robert Schroeder recently indicated that they would require patent defendants to ask permission before they can file a motion to dismiss raising Alice. This means that defendants in the Eastern District of Texas will more often be forced to go through expensive discovery.

When judges in the Eastern District do issue rulings on challenges raising Alice, their decisions are very different from jurists in other parts of the country. Recent data from Docket Navigator analyzed all challenges under 35 USC § 101 so far this year:

• Nationwide: 71% granted or partially granted; 29% denied (76 decisions)
• Northern District of California: 82% granted or partially granted; 18% denied (11 decisions)
• District of Delaware: 90% granted or partially granted; 10% denied (10 decision)
• Eastern District of Texas: 27% granted; 73% denied (11 decisions)

While each challenged patent claim is different, the overall trend suggests judges in the Eastern District of Texas are applying Alice in a way that is far more favorable to patent owners.

The Alice decision, and its companion, Octane Fitness v. Icon Health & Fitness gave judges additional tools for quickly dismissing meritless patent cases and holding unscrupulous plaintiffs to account. This means that patent trolls—particularly those that bring weak cases hoping to use the cost of defense to extort a settlement—now need a favorable forum more than ever. Small wonder we've seen a spike in EDTX filings.

We have also written about unfair rules that make it harder for patent defendants to file for summary judgment in the Eastern District of Texas. These rules have a real impact. A recent study found that judges in the Eastern District granted only 18% of motions for summary judgment of invalidity while the national grant rate is 31%. And that statistic, of course, does not include all the summary judgment motions that would have been filed had the defendant been given permission.

Judges in the Eastern District of Texas have also harmed defendants by delaying rulings on motions to transfer (these are motions where the defendant asks for the case to be moved to a more sensible location). Delay prejudices defendants because they are stuck litigating an expensive case in a remote forum while the judge sits on the motion. (The judges' rules make clear that a pending motion to transfer or a motion to dismiss is not grounds to stay discovery in a case). The Federal Circuit recently issued a stern order (PDF) finding that an Eastern District magistrate judge had "arbitrarily refused to consider the merits" of a transfer motion. When that transfer motion was finally considered, it was granted (PDF), but not until after extensive litigation had already occurred, and requiring the parties to pay for a court-appointed technical advisor (PDF). More generally, studies have also found the Eastern District of Texas is reversed by the Federal Circuit at a higher rate compared to other districts.

Venue Reform Can Fix the Mess

It's time for Congress to act. Although the Federal Circuit has overruled some of the Eastern District of Texas' most egregious venue decisions, it has failed to bring basic fairness to where patent cases are litigated. We need new legislation to clarify that patent cases belong in forums with a real connection to the dispute.

Fortunately, Congress is looking at the problem. Representative Darrell Issa recently offered an amendment (PDF) to the Innovation Act that would tighten venue standards in patent cases. On June 11, the House Judiciary Committee approved the amendment. If this bill becomes law, shell company patent trolls will no longer be able to drag out of state operating companies all the way to Eastern Texas.

It's long past time for Congress to bring fairness to where, and how, patent cases are litigated. Contact your representative and tell them to pass the Innovation Act and to ensure that any final bill includes meaningful venue reform.

Republished from the Electronic Frontier Foundation Deeplinks blog

Filed Under: east texas, jurisdiction, jurisdiction shopping, patent reform, patent trolls, patents, venue

Google Follows Newegg In Going Over East Texas Court's Head To Ask Court Be Ordered To Do Its Damn Job

from the issue-the-ruling-already dept

So we had just written about Newegg -- after waiting 20 months for a ruling in a patent case -- going to the Court of Appeals for the Federal Circuit (CAFC) to ask for an order telling the district court in East Texas to actually do its job. The move worked, getting Judge Rodney Gilstrap to finally issue the order (overturning a jury award on a bogus patent), but still taking the time to scold Newegg for daring to go above his head. We quoted Newegg's top lawyer Lee Cheng pointing out that if, as Gilstrap stated, part of the issue was his overwhelming schedule, then Gilstrap and other East Texas judges should be much more willing to grant transfer requests to courts outside of East Texas. As has been known for the better part of a decade, patent trolls love to file in East Texas because the courts there are super friendly to trolls. There is no legitimate reason for them to be in Texas, though some of the trolls set up fake empty offices in Texas just to pretend.

Either way, it looks like Google took Newegg's idea and decided to run with it as well. It, too, has now gone to CAFC to seek a writ of mandamus telling the East Texas court to rule on its request to transfer a patent troll lawsuit to Northern California:

This petition arises out of a patent infringement suit filed against Google by Brite Smart Corp. in July 2014, which was assigned to a magistrate judge. On October 24, 2014, Google moved to transfer the case to the United States District Court for the Northern District of California. The magistrate judge received Brite Smart’s response on November 10, 2014, and Google’s reply and Brite Smart’s surreply by December 1, 2014, but has yet to rule on the motion. Nonetheless, the magistrate judge has ordered the parties to engage in extensive discovery, including the taking of depositions and exchanging infringement and invalidity contentions, and held a Markman hearing.

At times, a lengthy delay in ruling on a request for relief can amount to a denial of the right to have that request meaningfully considered....

[....]

Here, Google filed its motion to transfer approximately eight months ago. Yet, despite the obligation to “promptly conduct” such proceedings, ... there has been no ruling, not even a hearing. Meanwhile, the magistrate judge has pressed forward with the case, proceeding through to the close of discovery and conducting both a Markman hearing and a hearing related to several discovery disputes. Brite Smart makes much of the fact that Google moved to supplement its motion to transfer. However, Google’s supplement amounted to less than two pages highlighting seven lines of deposition testimony. It does not account for the previous months of district court indecision. And Google expressly asked the district court to deny the request if it meant further delay on the transfer motion.

Given this passage of time and magistrate judge’s ordering of substantive development of the case, Google has made a compelling case that the magistrate arbitrarily refused to consider the merits of its transfer motion. We therefore direct the magistrate to rule on the motion to transfer within 30 days and to stay all proceedings pending completion of the transfer matter. We remind the lower court that any familiarity that it has gained with the underlying litigation due to the progress of the case since the filing of the complaint is irrelevant when considering the transfer motion and should not color its decision.

Again, it seems that there is no excuse for this, other than that the East Texas courts are buried under all these patent lawsuits, and the easiest way to deal with that problem is to promptly transfer out cases that don't belong there.

Filed Under: delays, east texas, jurisdiction, rocket docket, venue transfer, writ of mandamus
Companies: brite smart, google, newegg

Nutty Trollish Guy On The Internet Files Nutty Trollish Defamation Lawsuit In Random State

from the news-at-11 dept

Okay, look. We've really tried to ignore Chuck Johnson. It's pretty obvious that he's the kind of guy who does a bunch of the stuff that he does to get more attention. We've never covered his various hilarious legal threats, though you can see a bunch of them nicely cataloged at this website. If you're not aware, you can do some Google searches, but suffice it to say that he plays a "journalist" on the internet, and he's somewhat infamous for the various stunts he pulls, combined with his penchant for threatening people with libel, as well as for many of his biggest stories being, well... ridiculous. A few weeks ago he threw something of a public tantrum because Twitter kicked him off its service. He had a lawyer in Missouri, John Burns, send a ridiculous threat letter to Twitter, based on an interpretation of the law that might be described as "crazy" by some and... "wrong" by many others.

But, now, by all accounts, it appears that Johnson has actually filed a defamation lawsuit in Missouri against Gawker (who is currently fighting a big (and much more important) lawsuit concerning the Hulk Hogan sex tape excerpt that it published). The lawsuit is equally as nutty as most things associated with Chuck Johnson, but go ahead and read it. The one thing that's important to note is that there hasn't, yet, been confirmation that it's actually been filed, but at the very least someone put work into it.

By all public appearances, the only reasons that this was filed in Missouri was because... that's where Johnson could actually find a lawyer willing to file something so ridiculous (the same lawyer who made the silly threats against Twitter) and, perhaps, because Missouri lacks a real anti-SLAPP law. It has one, but it only applies to petitioning the government. All the more reason to support a federal anti-SLAPP law.

We can go through all the reasons why the lawsuit is likely to fail, but, come on, we've got other stories to write as well, so we'll just pick out some of the highlights.

1. Missouri?!? WTF? There is no legitimate reason to file this lawsuit in the state court in Missouri. Johnson is in California. Gawker is in NY. And no, the fact that it's kind of "in the middle" doesn't count. This lawsuit will almost certainly be thrown out over the venue choice. The rationale in the lawsuit is laughable:

   Because Plaintiffs have been injured in the State of Missouri, the matter is properly before a circuit court of Missouri. Venue is determined solely by statute. State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). Because the matter alleges torts, including defamation and invasion of privacy, venue is proper in this Court.

   That's unlikely to fly. As Adam Steinbaugh notes in his write-up (the link above), the case will almost certainly get dumped for "lack of personal jurisdiction." At the very least it won't stay in state court as it meets all the easy criteria for removal to federal courts (parties in different states, over $75k at stake...). Steinbaugh also wonders if Gawker might try to jump into federal court and file for declaratory relief in a state where it can use an anti-SLAPP law, but that's not actually as easy as it may sound for a variety of reasons.
   
2. The standard for defamation: As we've discussed many, many times, if you're a public figure, the standard for defamation is very high (as it should be). The statements need to be done with "actual malice," meaning that Gawker published false stuff, knowing it was false and that it would harm Johnson. That's not happening.
   
3. That's not defamation: Among the things that Johnson complains about is a Gawker claim that he is the "web's worst journalist." That's clearly a statement of opinion. No court is likely to find that defamatory.
   
4. Intermediary liability to the rescue: Johnson also claims that Gawker reporters "solicited" defamatory comments. That's protected by CDA 230 and should get tossed out. From the lawsuit:

   It is very common for initiators of writings (such as Defendants Howard and Trotter) to create content amongst other non-initiating content creators, and to directly respond-to and collaborate with non-initiating content creators, instigate and solicit responses from non-initiating content creators, and adopt the conclusions of or otherwise advertise or approve of the content of non-initiating content creators as signified through text content or by hyperlinking to additional locations on the same webpage or the webpages of other stand-alone writings.

   Yeah, that's not how the law works.
   
5. False things about false light: The lawsuit makes "false light" claims in addition to defamation. There's a problem with that. For the most part, Missouri does not recognize "false light." It's not absolutely true, but mostly true, as noted in a recent Missouri Supreme Court ruling that notes that it has left open the possibility of false light in future cases, but that it absolutely will not allow attempts to just pile on a false light claim that is nothing but an attempt to allege defamation in another form. This is not false light and Missouri's courts have rejected basically all false light claims for decades.

In the end, this may be more of the same nutty trolling from a nutty troll, but now that it's (supposedly) actually hitting the judicial system, it's worth highlighting yet another attempt to use defamation law to silence the press. What's almost hilarious about this is that Johnson often holds himself out as a strong supporter of the First Amendment. Funny stuff.

Filed Under: cda 230, chuck johnson, defamation, false light, first amendment, free speech, john burns, jurisdiction, missouri, opinion, venue
Companies: gawker

French Privacy Regulator Says Google Should Censor Global Internet Over EU Right To Be Forgotten Requests

from the nope dept

It's been just over a year since the ridiculous and dangerous ruling in the EU that said that there was a form of a "right to be forgotten" for individuals who don't like the Google results on their names. We've spent plenty of time discussing why this is such a bad ruling, so we won't necessarily repeat them now. With no other recourse, Google began implementing it, but for Europe only. Since then, there's been an ongoing push by some to say Google needs to enforce it globally, even in the US where such an interpretation of the law is clearly unconstitutional. Last July, soon after the initial ruling, there were rumblings that EU regulators wanted Google to expand the enforcement globally (and to stop telling publications that their links had been flushed down the memory hole). And, in December, the EU's "data protection" group made a similar argument.

Now we can add France's top privacy regulator to the list as well:

France’s privacy watchdog on Friday called on Google to apply a European data protection ruling to its global domains or face financial penalties.

[....]

French authorities are now increasing the pressure on the American company, saying that Google must apply the ruling across all of its domains in the next 15 days or face penalties including a one-off fine of up to 300,000 euros, or almost $340,000. Last year Google was fined €150,000 for failing to adhere to the country’s rules in a separate privacy case.

This, of course, comes right on the heels of the terrible Canadian ruling last week saying that Canadian courts can also censor the global internet.

The idea that courts in various countries now think that they have the right to determine what is "acceptable" for search engines to show in their results should frighten everyone. It will be interesting to see how far Google pushes back on these moves. While the classic response that many suggest whenever these issues show up is to say that Google should just stop working in those countries (and see how quickly citizens demand a fix), Google has generally avoided going that far. The few exceptions are much more narrowly tailored, such as when it shut down Google News in Spain after Spain passed a law requiring aggregators pay sites they link to.

What is still quite amazing is that supporters of such a "right to be forgotten" don't seem to ever care to think through the consequences of what they're advocating for. They all seem to think that deleting links to certain web pages is a no brainer that is obvious -- and never even seem to acknowledge the dangers of having the ability to simply delete factual history. Still, it's unclear what Google can do in this situation. If the company ignores the demand and France starts issuing fines, then what? Does Google pull its operations out of France (where it has many employees)? That would be a major step. But acceding to France's demands that the global internet be subject to the whims of angry Europeans who want to hide true events from their past, should be a total non-starter as well.

Filed Under: censorship, france, jurisdiction, right to be forgotten
Companies: google

Canadian Court: Yes, We Can Order Google To Block Websites Globally

from the that-seems-like-a-problem dept

Almost exactly a year ago we wrote about a troubling lawsuit in British Columbia, where a court ruled that Google needed to block access to a website globally. The case involved one company accusing another of selling counterfeit or copied equipment, and despite Google not even being a party to the case, said that Google needed to make sure no one could find the site in question via Google anywhere in the world. As we noted, this had tremendously problematic consequences. For example, China doesn't think anyone should be able to learn about the protests in Tiananmen Square. Can it now order Google to remove all links to such references globally? That result seems crazy. And, of course, there was a separate issue of how the court even had jurisdiction over Google, seeing as it does not have any operations, staff or servers in British Columbia. Google stepped in to protest the injunction at the appeals court.

Unfortunately, the court has now ruled against Google, using the same sort of logic the lower court did -- basically arguing that because Google is available in British Columbia, the court has jurisdiction, and because it's trying to stop what it deems to be illegal actions from reaching Canada's shores, it has every right to order Google to block things worldwide, lest someone from British Columbia decide to type "google.com" into their browser to avoid the "google.ca." On the question of "doing business" in BC, the appeals court basically accepts the lower court's confused understanding of things:

While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge’s conclusion that key parts of Google’s business are carried on here. The judge concentrated on the advertising aspects of Google’s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (“Googlebot”) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google’s business.

Google says that even if it is concluded that it carries on business in British Columbia, the injunction was not properly granted, because it did not relate to the specific business activities that Google carries on in the Province. In my view, the business carried on in British Columbia is an integral part of Google’s overall operations. Its success as a search engine depends on collecting data from websites throughout the world (including British Columbia) and providing search results (accompanied by targeted advertising) throughout the world (including British Columbia). The business conducted in British Columbia, in short, is the same business as is targeted by the injunction.

In other words, if you don't want to be subject to the laws of BC (with control over your entire global operations) don't index websites based in BC? That's crazy. While I doubt it will happen, it's got to be tempting for some at Google to just say "okay, no more Google for BC or any website in BC."

Now as for the nutty idea that a court in BC has jurisdiction over all of Google's global operations, again, the court doesn't seem even remotely concerned about that. It's response is basically "yeah, so?"

Google raises the specter of it being subjected to restrictive orders from courts in all parts of the world, each concerned with its own domestic law. I agree with the chambers judge that it is the world-wide nature of Google’s business and not any defect in the law that gives rise to that possibility. As well, however, the threat of multi-jurisdictional control over Google’s operations is, in my opinion, overstated. Courts must, in exercising their powers, consider many factors other than territorial competence and the existence of in personam jurisdiction over the parties. Courts must exercise considerable restraint in granting remedies that have international ramifications.

And it notes that previous cases have said that, sure, BC courts have "worldwide jurisdiction."

At one time the courts of this Province refrained from granting injunctions that enjoined activities outside of British Columbia.... In 1988, however, the English Court of Appeal held that it had jurisdiction to issue a worldwide Mareva injunction.... It is now over 25 years since the Supreme Court of British Columbia first issued a worldwide injunction.... The jurisdiction to do so was re-confirmed .... and is, today, well-established.

Google, quite reasonably, points out that while injunctions make sense against parties that actually break the law, it makes no sense to issue an injunction against a third party that has nothing to do with the party that actually broke the law. The court goes on a long and winding road saying "sure, but... in this case, it's okay."

Finally, the court addresses another concern raised by the Canadian Civil Liberties Association, noting that banning access to a website worldwide has serious free speech consequences. Once again, the court says "sure, but, we don't care in this case."

For that reason, courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.

In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

I note, as well, that the order in this case is an interlocutory one, and one that can be varied by the court. In the unlikely event that any jurisdiction finds the order offensive to its core values, an application could be made to the court to modify the order so as to avoid the problem.

In short, sure, banning speech around the globe from one court in British Columbia, Canada could have serious global free speech concerns, but... we really don't like this website, so we're not going to change the ruling. In fact, later in the ruling, the court basically says "hey, the idea that there may be some 'legitimate' speech on this website we're ordering blocked globally is totally speculative":

There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.

And, thus, British Columbia believes it can order global blocking of any website its courts deem problematic in BC. One wonders if we'll start to see "censorship tourism" migrating to BC courts now that its doors are open for global censorship orders.

Filed Under: british columbia, canada, counterfeits, global injunction, injunction, jurisdiction
Companies: equustek solutions, google

Japanese Court Orders Google To Remove Customer Reviews From Its Maps Service -- Globally

from the long-arm-of-the-law dept

The following story from Japan, reported by Techcrunch, might seem to be an everyday internet tale of privacy and freedom of speech interacting badly:

The Chiba District Court today issued a preliminary injunction forcing the U.S. internet company to remove two anonymous reviews for an undisclosed medical clinic in the country. While they document negative customer experiences at the clinic, neither review violates the policies that Google has in place for user generated content within the Maps service.

Nothing special there, you might think, but there's a sting in the tail:

The court ruled that Google not only removes the content in Japan, but across the entire globe too.

That's troubling, because it's yet another case of a local court asserting its right to affect what happens across the entire internet -- the best-known example being the EU's claim that its privacy regulations have to apply globally if they are to be effective. It's worrying to see a similar ruling from Japan, albeit only in a preliminary injunction, and one that Google is appealing against, because it risks normalizing that view, with serious consequences for the online world. Far from being a domain subject to no rules, as politicians love to claim, the internet would begin to turn into the one place that has to obey every country's laws.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: customer reviews, google maps, internet, japan, jurisdiction
Companies: google

Virginia's Top Court Refuses To Unmask Anonymous Yelp Reviewers, But Not For First Amendment Reasons

from the technically-a-'win' dept

The long-running defamation suit against anonymous Yelp reviewers -- brought by Hadeed Carpet Cleaning -- finally has produced some good news… sort of. Hadeed's lawsuit defines "problematic," seeing as it both threatens anonymous speech and is predicated not on actual defamatory statements, but on the allegations that the reviewers were never actual customers of the business. Hadeed has argued that a review from a non-customer is defamation in and of itself, which obviously contains some very negative implications for free speech -- anonymous or not -- if he succeeds in his legal efforts.

Two lower courts chose to apply Virginia state law rather than the Dendrite Rules, and ordered Yelp to turn over identifying information. That decision was appealed by Yelp, and the state's Supreme Court has responded by rejecting Hadeed's unmasking request… but not for First Amendment reasons. Instead, its decision is based on a technicality -- one that does little to ensure the future protection of anonymous speech.

[T]he Virginia Supreme Court issued its ruling (PDF) in favor of Yelp, finding that the company doesn't have to disclose any user information, because the lawsuit shouldn't have been filed in Virginia in the first place.

The court's decision to focus solely on the issue of jurisdiction means that the more important public policy argument—whether the Yelp reviewers have a right to anonymous speech in this case—goes unaddressed.

While it is helpful that the court has made it clear that Virginia entities don't possess subpoena power over non-residents, that's pretty much the extent of the good news for Virginia residents. The other silver lining is that if Hadeed continues to pursue these reviewers, he'll have to do it in California, where he'll need to meet a higher standard if he hopes to obtain any identifying information.

"Although we were hoping the court would rule on both jurisdictional and First Amendment grounds, this is still an important win,” said Paul Levy in a statement. "If Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence."

Now, the question remains as to whether Hadeed will continue his unmasking efforts in a less-friendly venue. Considering he doesn't dispute the content of the reviews -- just the legitimacy of the reviewers -- this would seem to be an obstacle not worth surmounting.

Paul Levy, however, says Hadeed may have little choice but to pursue this in an unfavorable venue because previous statements leave his company little choice but to continue on its quest to be proven "right."

[I]n light of Hadeed’s previous public statements, it is hard to understand how it could not go forward in California. It took advantage of the pendency of this litigation to mount a public relations offensive portraying itself as an innocent victim of Yelp reviews, making a variety of strong claims about how seriously its business was harmed by negative reviews and speculating about whether Yelp was an “instrument for defamation.” It managed to manipulate a number of reporters at respectable publications into repeating its accusations as truths. And although some of its legal papers were circumspect in admitting that, based on its reviews of its customer database it could do no more than “wonder” whether the Does whom it sued in this case were really customers, in other places it made the affirmative assertion that there was a sufficient basis in its customer database to assert that the reviewers were, in fact, not customers.

Filed Under: anonymity, dendrite rules, hadeed, jurisdiction, reviews, virginia
Companies: hadeed carpet cleaning, yelp

EU Thinks It Has Jurisdiction Over The Global Internet: Says Right To Be Forgotten Should Be Global

from the because-of-course dept

Back in May, of course, a troubling ruling by the EU Court of Justice said that search engines had to disappear links on searches for certain people's names if that information was somehow no longer relevant. This, of course, kicked off a "right to be forgotten" craze in Europe, where thousands of people sought to have embarrassing stories about them removed from Google's results on their names. In July, we noted that EU regulators were suggesting that this "right to be forgotten" should apply globally, rather than just in Europe, as Google had currently implemented it. Google pushed back on this idea, but apparently without success. Last week, the EU's data protection officials released new "guidelines" [pdf] that argue the right to be forgotten should apply globally.

Specifically, it argues that if a person's privacy rights are violated by having results show up in search engines in Europe, then those same rights are violated if they show up in any non-EU search results as well (all emphasis in the original):

The [data protection working group] considers that in order to give full effect to the data subject’s rights as defined in the Court’s ruling, de-listing decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented. In that sense, limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient means to satisfactorily guarantee the rights of data subjects according to the ruling. In practice, this means that in any case de-listing should also be effective on all relevant .com domains.

Under EU law, everyone has a right to data protection.

The key line here is not actually bolded in the original. It's the "this means that in any case de-listing should also be effective on all relevant .com domains." Basically, if it can be reached from Europe, it has to be blocked. Or, in even shorter form, "EU regulations apply around the globe online." That's a really, really, bad idea. Because now how will the EU respond to other countries pushing their own silly censorship efforts globally? Russia can claim that anything about homosexuality must be blocked globally. China can argue that anything about Tibet or government corruption can be blocked globally. And how will the EU respond?

This is so troubling that even folks who actually support the original ruling are speaking out about how troubling these new guidelines are. Even GigaOm's David Meyer, who regularly has supported the right to be forgotten (which he argues is an unfair description of "the right to be de-linked"), says that this is bad:

I can understand Falque-Pierrotin’s logic, but even I — someone who finds value in the concept of the right to be de-linked — think this is an awful decision.

It’s part of a worrying trend, taking place around the world, for local or regional internet-related rules to apply everywhere. Again, it is understandable why regulators want to do this – the internet is a global medium, and it’s near-impossible to geographically limit effective regulation – but the result is layers of overlapping jurisdictions.

Even if Europeans believe strongly in this right-to-be-forgotten idea, they should be, as Meyers is, troubled by the idea that an EU ruling can impact the global internet. And yes, as Meyers points out, the US is often guilty of pretending that its laws apply to the global internet as well, and that should be equally troubling.

Filed Under: eu, free speech, jurisdiction, privacy, right to be forgotten, search engines

Roca Labs Sues Blogger; Faces Legal Challenges In NY & Florida

from the slow-down-guys dept

Keeping up with the ongoing Roca Labs saga appears to require full-time effort, as there are a bunch of updates. First up, though, is that Roca Labs has decided to sue blogger Tracy Coenen for the articles she published about Roca Labs. Earlier this month, we wrote about Roca Labs' threats against Tracy Coenen, a fraud investigator, who wrote about Roca Labs on her Fraud Files blog. As in the past, it appears that Roca Labs believes statements that are clearly opinions or hyperbole are somehow defamatory if they reflect negatively on Roca Labs. Before filing the lawsuit, Roca sent a second threat letter with a very brief deadline, complaining that she "publicly mocked" them. Coenen's response was to publish a new blog post explaining why she believes "Roca Labs Must Be Mocked."

In the actual lawsuit, Roca also claims that because Coenen sent us Roca's threat letter and we published it, that she was using Roca's letter to "harass and mock" the company. Who knew that merely publishing the threat Roca Labs sent is harassment of Roca Labs? And, of course, mocking Roca Labs is not against the law, no matter how much the company might wish it were so.

In the meantime, it appears that Coenen actually did -- at least temporarily -- give in to Roca's demands and removed the blog post in question -- but Roca Labs claimed it was not enough because she "did not retract [her] Defamatory Statements or otherwise comment publically [sic] concerning the defamatory Statements' lack of fact and merit." Further, the lawsuit accuses her of trying to "conceal the truth and cover-up [her] bad acts."

So, to keep this straight: Roca Labs sent her threat letters claiming what she wrote was defamatory, and after she removed the post (temporarily), the company is using that as evidence that she's trying to conceal the truth? Really? Good luck with that one. Oh, and also, it appears that Roca's attorney in this case, John DeGirolamo, is still somewhat confused about what defamation per se means. Hopefully, the court will sort it out for him.

In the meantime, some other things have been happening in various other Roca Labs court proceedings. Up in New York, where PissedConsumer (Consumer Opinion Corp.) had originally sued Roca Labs for declaratory judgment of non-infringement, Roca Labs had been trying to get out of the case arguing that the jurisdiction is improper. But, as you may recall, Roca also recently sent a questionable DMCA takedown letter to Google, claiming that content on PissedConsumer was infringing (something we find unlikely to be true... but...). However, as PissedConsumers' lawyers in New York note, in filing that takedown, Roca Labs has effectively made itself subject to PissedConsumer's local court's jurisdiction. This is based on a ruling in another nutty case we covered for a while, the effort by Gina Crosley-Corcoran to use the DMCA to silence a critic. In that case, the court noted that, in serving a DMCA takedown notice, the sender "purposefully and voluntarily directed [its] activities toward the forum so that [it] should have expected, by virtue of the benefit [it] received, to be subject to [this] court's jurisdiction based on these contacts."

When PissedConsumer's lawyers notified Roca Labs' lawyers of this, Roca Labs stood by its argument that the court has no jurisdiction, but Roca Labs' lawyers didn't seem to understand the significance of this. In response, PissedConsumer is now seeking to go after Roca Labs for DMCA 512(f) penalties, for misrepresentations in filing a DMCA takedown.

And, finally, just to complete this trio of stories, we'll also note that, down in the Florida case, PissedConsumer has filed a humdinger of a motion for summary judgment, laying out why Roca Labs has no chance in its case, and why the case should be put to rest quickly. Given everything else going on, we won't go into a more detailed analysis of that motion, other than to suggest you read it, and note that, as we predicted, it relies heavily on Section 230. It's written by Marc Randazza, so it's got that readable style he's become known for.

Filed Under: copyright, defamation, dmca, john degirolamo, jurisdiction, lawsuits, marc randazza, paul berger, takedowns, tracy coenen
Companies: consumer opinion corp., pissedconsumer, roca labs