'Search Engines and Global Takedown Orders: Google v Equustek and the Future of Free Speech Online' by Robert Diab in (2020) 56(2)
Osgoode Hall Law Journal 231
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The Supreme Court’s decision in Google v Equustek (2017) to uphold a global content takedown order remains controversial and consequential to wider debates about governing the internet. This commentary examines the Court’s underlying assumption – a common view in takedown 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 internet as a public forum. This commentary 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 author proposes a test for takedown orders that strikes a better balance between free speech and private interests.
'The Rise of Content Cartels' by
Evelyn Douek
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The fear that a single actor can decide what can or cannot be said in large parts of the online public sphere has led to growing calls for measures to promote competition between digital platforms. At the same time, others are demanding greater cooperation between the custodians of the public sphere. These pressures are not necessarily at odds, but some work needs to be done to reconcile them. To what extent should platforms have consistent content moderation policies? If standards and guardrails are imposed on the public sphere, should platforms work together to ensure that the online ecosystem as a whole realizes these standards, or would society benefit more if it is every platform for itself?
The concerns behind these questions has led to the rise of "content cartels:" arrangements between platforms to work together to remove content or actors from their services without adequate oversight. These come in various guises; they can be demanded, encouraged, participated in, or unheeded by regulators. But they share the characteristic that they compound the existing lack of accountability in platform content moderation.
This paper begins in Part I by tracing the origin and spread of content cartels, showing that content cartels are the proposed response to an increasing number of pathologies in online discourse. Part II examines the impulses behind demands for greater cooperation and the ways in which such cooperation can be beneficial. Part III explores the failures of the current arrangements and the threats they pose to free speech. Part IV sets an agenda for developing the tools to create productive and legitimate cooperation between platforms in those areas where it can be beneficial or has become inevitable.
This paper has two goals. The first is to raise the alarm about a possible future coming into view, of unaccountable content cartels making decisions about the parameters of online discourse in a way that is just as problematic as an unaccountable monopoly. The second is to explore what can be beneficial about collaborative efforts and what might redeem them. This is a pivotal moment in the management of public discourse, and the structures built now should serve enduring values. We need not settle for institutions that stick band-aids on some problems but do not serve the deeper goal of building trust in online speech governance.
