Google vs The World – Can Search Engines Be Liable For Defamation?

In a landmark decision by Mr Justice Eady, the effective founder of Privacy Law in the UK, the High Court has found that Google cannot be liable for defamatory comments features in articles, forum posts and web pages which appear in its search results.

The Claim was brought against Google’s US and UK businesses by Metropolitan International Schools, as well as the Designtechnica Corporation. Designtechnica operates the “Digital Trends” website, which provides “news, professional reviews and opportunities for public discussion on the latest consumer electronics products, services and trends”, attracting 2 million page views per month.

Many of those visitors post messages on the 14 separate bulletin boards which Digital Trends hosts, and this is where the problem began.

On 25 March 2009, a thread was posted on one of the Digital Trends boards under the title “Train2Game new SCAM for Scheidegger”, suggesting (amongst other things) that Metropolitan International Schools had infringed copyright by copying materials used in their “Train2Game” Courses and that the Courses themselves were a “scam”.

Metropolitan sued Designtechnica on the basis that they published the comments in the first place and Google for further repetition of the comments by “publishing” them in search engine results.

Google’s response claimed that they had no responsibility for comments displayed in their search engines, and ultimately Justice Eady agreed, in a judgment which will make search engines everywhere breathe a little easier.

This is a very important judgment. Internet libel is one of the fastest growing areas of law, and one which can potentially attract large awards of damages given that, due to the international nature of the internet.

Claimants based outside the UK can potentially sue here if their comments can be read in this country and therefore gain higher damages than they would recover in their home Court, based on the Don King case from a few years ago. Whilst not dealing specifically with this point, the Court has taken the opportunity here to restrict the scope of what Claimants in these cases can recover by restricting who they can recover damages from.

The normal rule in libel cases is that a statement must be made that clearly refers to the Claimant, which lowers his reputation in the minds of ordinary respectable people and exposes them to contempt or ridicule and most importantly the statement must be made or published to a third party, as the law won’t allow for damages to be paid on account of arguments or insults between two people. It is the publication element which leads to considerable damages claims, as any person who publishes the libellous statement can be sued. For example, the Journalist who writes the Story, the Paper who publishes it and theoretically the Newsagent who sells the paper could face proceedings.

This is the logic that Metropolitan followed, claiming that by allowing them to appear in search results, Google “published” the libellous comments to the world at large. The more people see a comment, the greater effect it will have upon a reputation and the larger the damages figure is likely to be.

Internet Service Providers (“ISPs”) have had to deal with this argument before in the leading case of Godfrey v Demon Internet, where the Court found that Demon had not removed libellous comments from a website which it hosted and as such was liable for them. This led to the general rule of thumb that ISPs and other Web-Based businesses who facilitate access to the internet should not be held liable if they operate a “Take Down” policy and remove unlawful material as soon as they are notified that it exists. This was later enshrined in European Law.

Here, however, Justice Eady drew an important distinction between an ISP or other website host and a Search Engine – ISPs can take simple and effective measures to take down a website within hours of being notified of unlawful content whereas Search Engines can’t. Google cannot control the search terms which users type in and can’t block specific statements without blocking a huge amount of other sites which may contain the offending comments and thereby cutting out a considerable amount of their business. Given the sheer number of websites which they search, the steps which they would need to take to completely block all of the comments from appearing in results would be disproportionate. Finally, the Judge noted that it is up to users whether or not they choose to click on any particular result and that Google is merely a “facilitator”.

What is important in this case is that Google did block access from their site to the offending commentary, although not quickly enough for Metropolitan.

This is a great result, and a very sensible one, for Search Engines and the Internet Industry generally. Had this decision gone against Google, it would in all probability have opened the floodgates for a number of similar claims against them and had a massive effect upon how people use the web as well as Google’s role in them doing so. Clearly, Google could not be expected to police the contents of every site which comes up in search results, which Justice Eady clearly recognised.

However, the price of freedom for the Search Industry will be eternal vigilance – the Judge confirmed that Google does still have a responsibility to block or remove content if it receives a legitimate compliant over libellous material. To ensure that they are not liable, search engines, ISPs and any other “intermediary” businesses will need to move very quickly. Otherwise, they may face actions for comments which were made abroad but can be read in the UK, where libel damages are more generous. The advice has to be that if in doubt, remove the content and deal with it later as an ounce of prevention will be worth potentially hundreds of thousands of pounds of cure.

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