Google Search as 'Facilitator' not 'Publisher'

Dear Reader,

There has been some doubt  in the UK as to whether search engines are 'publishers' and so responsible for: (a) displaying unlawful content in 'snippets' on the search results page; or (b) displaying a link to the page on which such content first appears.

But Mr Justice Eady has swept away this uncertainty by ruling in July that Google is a 'facilitator', not a 'publisher' and as such is not liable for defamatory text appearing in a snippet on its search results page (or, by extension, for displaying a link to the page on which the defamatory content was published in full, although Eady J did not specifically address this point).

MIS v Google

The claimant was a company trading as "Scheidegger MIS" offering a distance learning course called "Train2Game". The claimant noticed defamatory comments on a forum provider's website, some of which also appeared in Google's search results when searching for "Train2Game".

The position regarding forum providers' liability for UGC is relatively clear (essentially they can benefit from certain exemptions as long as they implement an expeditious 'notice and take-down' policy) so I won't rehearse it here.

The decision in this case was essentially that Google is not to be regarded as publisher of the defamatory comments so it is not liable for them. As such, although Eady J considered the defences available to Google under common law, the Defamation Act 1996 and the E-Commerce Directive, it was unnecessary for Google to rely on them - it is not liable in any event because "if a person is not properly to be categoised as the publisher at common law, there is no need of a defence."

So the general position regarding search engines now appears to be that they are not publishers of the content they display on their search results page and, as such, they are not liable for any unlawful content contained therein. However, this is subject to the following provisos:

• This will depend on the facts of each case and the way in which each search engine operates (e.g. search engines acting as aggregators may still run into trouble as Google News did in Belgium in 2007 - see our article here).
• As a High Court decision in an interim application, this decision is not strictly binding legal precedent but is strongly persuasive and highly likely to be followed in future cases - and, perhaps more significantly, to act as a deterrent to claimants joining search engines as co-defendants in defamation claims.

Eady J made much of the fact that Google's service is fully automated and "Google has no control over the search terms entered by users of the search engine or of the material which is placed on the web by its users." It follows that "it has not authorised or caused the snippet to appear on the user's screen in any meaningful sense."

As there is no directly applicable case law and no specific legislation on the question of whether a search engine is a 'publisher' for the purposes of defamation, Eady J took the approach "to see how the relatively recent concept of a search engine can be made to fit into the traditional legal framework (unless and until specific legislation is introduced in this jurisdiction". In doing so, he referred to the ISP cases of Bunt v Tilley and Godfrey v Demon Internet.

The idea that one party can be liable for an unlawful statement published by another party goes all the way back to 1894 to the quirky English case of Hird v Wood. In this case, a man sitting in a chair pointing to a defamatory placard was held to be liable because by pointing out the sign, he had contributed to its publication. However, in the even earlier (and even quirkier) case of Smith v Wood in 1813, a man who showed a defamatory caricature to a stranger who had knocked on his door and asked to see his etchings, was held not to have published that defamatory caricature.

Eady J did not refer to either of these cases in his judgment. If he had, I imagine he would have seen Google as the caricature artist acting passively in response to the requests of strangers, rather than the man actively pointing to a sign. Google does not choose what it 'points to' - as Eady J held, it "has no role to play in formulating the search terms" and performs the search "automatically in accordance with computer programmes." In addition, Google has an "absence of knowledge...in relation to the offending material", so on this basis it can be distinguished from the caricature artist as well.

Notice and Take-Down

One of Google's arguments in its defence in this case was that "it is practically impossible and certainly disproportionate to expect [Google] to embark on a wild goose chase in order to determine where the words complained of, or some of them, might from time to time "pop up" on the Web". Eady J agreed with this point, saying "One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet...." As such, access to the specific link the claimant complained of may be removed  but this does not mean that the comments will not appear in Google's search results (e.g. if they appear on another site, Google may link to that site, unless the URL for that site is also specifically blocked).

When I Googled "train2game" to see what the fuss was about, the following message appeared at the bottom of the search results page:

 

So Google has removed the link to the offending comment. It is interesting to note that Google has a mechanism for people to file notices of copyright infringement (see here) but not for other types of unlawful (e.g. defamatory) content. Following this decision, there is no reason (in the UK, at least) for it to change this position.

We have previously advised a client who had written an article which aggravated members of the online community, causing them to attack him in blogs, forums, wikis, you name it. Needless to say, his 'net-rep' was in tatters and he was finding difficulty getting a job as a result. As it was fruitless to pursue all of the sites on which defamatory comments appeared, he went straight to Google to ask them to block the content. However, they said that this was not possible, for the reasons given above. Eady J's decision in this case further decreases his chances of any such remedy.

Eady J did, however, say that "there is no doubt room for debate as to what further blocking steps it would be open for it to take, or how effective they might be." We'll keep an eye out for any developments in this area.

No doubt this will be a welcome development for all search engines. It has created a degree of certainty in this area, bringing the UK into line with those EU member states which have opted to include a statutory exemption from liability for search engines (e.g. Bulgaria). However, there is still room for clarification on the notice and take-down obligations of search engines, which could be dealt with by a voluntary industry code or by the introduction of legislation.

Yasmin Joomraty

Laurence Kaye Solicitors

Comments

[mimi]

Google the Google Book Settlement.
Google is publishing. Absolutely.

[Yasmin Joomraty]

No doubt "Google Inc" in some of its guises is acting as a publisher - most obviously, as you point out, in relation to its Google Books project. Another example is when it puts on its 'content scraper/aggregator' hat (as Google News), in which form it has been held to be a publisher (see the Belgian Copiepresse case). However, MIS v Google relates only to Google with its search engine hat on.

It will be interesting to keep an eye on the case law developing from the myriad activities undertaken by Google Inc to see which incur liability for Google as publisher and which exempt Google from liability as 'facilitator'.

It is also worth noting the differences of approach in the judgments given in the defamation cases and those in the copyright infringement cases against Google.