Comity’s Double Edge: Reciprocity and Cooperation in Global Internet Takedown Orders
The Internet has no borders — its natural habitat is global.” These were the words of the Supreme Court of Canada in upholding an injunction against Google that required it to delist the websites of an intellectual property infringer worldwide. The words are, at least in our most common experience of the Internet, undoubtedly true. But they also highlight an important discrepancy: the Internet may have no borders, but the law often does. So when courts choose to apply their domestic law to the Internet with worldwide effect, as the Supreme Court of Canada did, it sets the stage for an international showdown between courts and laws, the resolution of which affects Internet users around the world.
This is, to some extent, precisely what happened. Shortly after the Supreme Court of Canada’s decision, Google attacked the order in California courts, successfully seeking an order that would prevent domestic enforcement of the Canadian injunction on the basis that it undermined American domestic policy and threatened free speech on the Internet. The American court was not alone in this concern: numerous commentators and human rights organizations opposed the decision on the basis that such orders will provide a precedent for more restrictive regimes elsewhere in the world to order content takedowns, and this will, therefore, undermine freedom of expression on the Internet.
This paper examines the role that comity does, and should play, in limiting the extraterritorial application of global content takedown and delisting orders. While it is focused on the Canadian Supreme Court of Canada case in Google v Equustek, it also highlights two similar cases: the ongoing litigation in European Court of Justice concerning the territorial scope of delisting requirements under the right to be forgotten, and the Australian case of X v Twitter, in which Twitter was ordered to remove certain Twitter posts, which contained the complainant’s confidential information, from the platform worldwide.
Based on these cases, this paper first observes that the concern expressed by commentators can be reframed as one about reciprocity and cooperation between nations, and that this concern is both merited and finds a natural home in the principle of comity. It then develops three premises that suggest a more important role for comity in future decisions. The first premise is that comity imports foreign relations concerns into private disputes. This can be observed in Anglo-American approaches to comity, and finds its most important articulation in section 403 of the Restatement (Third) of Foreign Relations Law of the United States.
The second premise is that comity operates similarly to a principle of due process or procedural fairness, under which foreign states’ interests must be considered when they are implicated. This follows from the manner in which comity operates in judicial decisions as a mandatory consideration, but one that reaches no mandatory results.
The third premise is that the content of the principle of comity is determined by the need to maintain cooperation and mediate the threat of reciprocity. This follows from both judicial statements on the role of comity, as well as an application of game theory to extraterritorial orders. By viewing such orders as an instance of an N-person Prisoner’s Dilemma, we can see that cooperation on limiting the extraterritorial reach of these orders is loosely optimal in repeated games, but that a race to the bottom may follow from defections from this cooperation, resulting in more foreign regulation of Internet content.
Based on these premises, this paper concludes that courts should fashion a more robust approach to comity in cases of global Internet content takedown and search engine delisting orders that ensures such orders do not overly interfere with freedom of expression on the Internet. Ultimately, such an approach is self-interested, in that it is designed to protect domestic freedoms from foreign overreach. One of the most important ways of doing this is by the adoption of a robust process itself. While comity can never compel courts to reach a particular decision, by adopting an approach that carefully considers foreign interests and freedom of expression generally, a strong precedent of considering such interests might be set internationally that would then protect domestic speech interests.