The search giant's US and UK operations were sued in England by
a London-based training business over comments about its
distance learning courses that appeared in the forum of a US
website. The comments were said to be defamatory and an excerpt
from them could be found in Google's search results.
Metropolitan International Schools Ltd (MIS) runs distance
learning courses in games development under the name 'Train2Game'.
In addition to suing Google it is also suing US company
Designtechnica Corporation, which runs reviews website Digital
Trends.
The user forums on that site contained a thread that comprised
146 postings across 15 pages, calling the Train2Game courses
"nothing more than a scam," according to the judgment. Another
thread, spanning 137 pages, called another MIS course a scam.
MIS said that when it searched for the term "Train2Game" at
Google.co.uk and Google.com, results for the Train2Game thread were
returned as the third and fourth results for a period of three
weeks preceding the date of its lawsuit. They included the snippet
of text: "Train2Game new SCAM for Scheidegger". MIS used to trade
as Scheidegger MIS and it said that this snippet of text was
defamatory.
According to Google, MIS asked the company to block the URLs
that contained the offending comments and also block combinations
of words that may appear at other URLs. MIS said Google was itself
liable as a publisher of defamatory comments.
Google argued that its UK operation, Google UK Ltd, should not
be a party to the action because "its employees do not have access
to any of the technology used to operate and control google.com and
google.co.uk which are owned and operated by [Google Inc]."
Mr Justice Eady did not rule on whether or not Google UK could
be sued or on the liability of Designtechnica. Instead, he focused
on whether it should be possible for MIS to sue Google Inc. in
England.
A High Court Master, a procedural judge who deals with actions
until they are ready for trial, had granted permission for MIS to
serve proceedings on Google Inc. by email or fax. Mr Justice Eady's
ruling focused on Google's attempt to have that permission
withdrawn.
Google said that Google Inc. should be sued in California, not
England. But even if England is the proper forum, it argued, Google
has no responsibility for the words complained of, and therefore
there is "no reasonable prospect of success" which is a requirement
of rules on serving lawsuits outside the court's jurisdiction.
Mr Justice Eady noted that MIS operates in England. "This is
certainly not a case of 'libel tourism'," he wrote. The case did
not focus on the rules of jurisdiction; rather, it focused on the
liability or otherwise of a search engine under English law.
"There appears to be no previous English authority dealing with
this modern phenomenon," wrote Mr Justice Eady. "Indeed, it is
surprising how little authority there is within this jurisdiction
applying the common law of publication or its modern statutory
refinements to Internet communications."
He noted that there have been only two decisions relevant to the
role of internet intermediaries: Godfrey v Demon Internet
in 2001and Bunt v Tilley in 2007.
Google referred to each case to support its argument that it is
not responsible for the snippet of text about MIS. It said that it
has no liability with regard to any publication of the snippet
prior to notification as to the identity of specific URLs that
contained the words. It added that it would not be liable even
after if it was notified of the offending URLs.
"The appropriate question here, perhaps, is whether [Google
Inc.] should be regarded as a mere facilitator in respect of the
publication of the 'snippet' and whether, in particular, that would
remain a proper interpretation even after the date of
notification," wrote Mr Justice Eady.
He concluded that Google was a mere facilitator. The Bunt case,
also heard by Mr Justice Eady's, confirmed that mere facilitators,
like telephone carriers, are generally not liable for defamatory
content.
Mr Justice Eady also referred to a 19th century case, Emmens v
Pottle, which said that handing someone a newspaper that contained
a libel could only incur liability if the distributor knew of that
libellous content.
The court said that Google could not prevent the snippet
appearing in response to a user's search request unless it had
taken some positive step in advance. He said that Google cannot be
characterised as a publisher at common law if it has taken no such
steps.
"It has not authorised or caused the snippet to appear on the
user's screen in any meaningful sense," wrote Mr Justice Eady. "It
has merely, by the provision of its search service, played the role
of a facilitator."
He noted that in the Godfrey case, in which Demon Internet was
found liable for defamatory postings that it had failed to remove
from a site that it hosted, in spite of warnings, "the acquisition
of knowledge was regarded as critical."
He went on to distinguish the facts of Godfrey.
"A search engine, however, is a different kind of internet
intermediary," he wrote. "It is not possible to draw a complete
analogy with a website host. One cannot merely press a button to
ensure that the offending words will never reappear on a Google
search snippet: there is no control over the search terms typed in
by future users. If the words are thrown up in response to a future
search, it would by no means follow that [Google Inc.] has
authorised or acquiesced in that process."
He found, though, that Google could take some steps to block
content.
"There is a degree of international recognition that the
operators of search engines should put in place [a take-down
policy] (which could obviously either be on a voluntary basis or
put upon a statutory footing) to take account of legitimate
complaints about legally objectionable material," he wrote.
"It is by no means easy to arrive at an overall conclusion that
is satisfactory from all points of view," he said. "In particular,
the material may be objectionable under the domestic law of one
jurisdiction while being regarded as legitimate in others."
He noted that, in this case, Google had taken steps to ensure
that certain identified URLs were blocked. "I am told that [Google
Inc.] needs to have specific URLs identified and is not in a
position to put in place a more effective block on the specific
words complained of without, at the same time, blocking a huge
amount of other material which might contain some of the individual
words comprising the offending snippet," wrote Mr Justice Eady.
"It may well be that [Google Inc.'s] 'notice and take down'
procedure has not operated as rapidly as [MIS] would wish, but it
does not follow as a matter of law that between notification and
'take down' [Google] becomes or remains liable as a publisher of
the offending material," he wrote. "While efforts are being made to
achieve a 'take down' in relation to a particular URL, it is hardly
possible to fix [Google Inc.] with liability on the basis of
authorisation, approval or acquiescence."
MIS sought an injunction to prevent the display in search
results of anything that suggests it is involved in a scam, without
the need to provide Google with the location of the materials in
question.
Google said that it had blocked access from google.co.uk to the
specific URLs identified by MIS. "This would not stop somebody,
however, from searching on www.google.com," wrote Mr Justice
Eady. "Nor would it prevent a third party who is responsible for
the content of the site in question from moving it to a different
web page, while giving it a different URL and avoiding the
block."
"Thus, submits [Google's barrister Antony White QC], it is
practically impossible, and certainly disproportionate, to expect
[Google Inc.] 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."
Mr Justice Eady agreed with Google's arguments. If
Designtechnica blocked or removed the offending content on its
site, which it could, that content would not be picked up by search
engines, he noted. If MIS is to have an effective remedy, he said,
it must lie against Designtechnica. An injunction against Google
Inc. "would be a hopelessly inadequate substitute," he said. He
added that it would be unrealistic to hold Google responsible for
publication of the snippet "whether on the basis of authorship or
acquiescence."
Mr Justice Eady also considered the Defamation Act, the
E-commerce Regulations and the common law defence of innocent
dissemination. But he reached his main conclusion on the basis of
common law defamation and found that Google was not a publisher
under that law.
"I do not consider that on the evidence before me [Google Inc.]
can be regarded as a publisher of the words complained of, whether
before or after notification," he wrote. The Master's order was set
aside.
Struan Robertson, a technology lawyer
at Pinsent Masons, the law firm behind OUT-LAW.COM, said the ruling
is good news for search engines but leaves some questions
unanswered.
"Justice Eady saw it as significant that Google had blocked the
URLs supplied by MIS," said Robertson. "He talks of international
recognition that search engines should have such systems in place.
But he only hints that a search engine can become liable if it has
no such take-down procedure – he doesn't put that beyond doubt,
which leaves some uncertainty. It's also a bit frustrating that
we're given no guidance on how fast or effective such take-down
systems should be."
"Nor did Justice Eady analyse in any depth the fact that the
URLs were blocked only on Google.co.uk, not Google.com," he said.
"Since the US site is also used by many people in the UK, it's
surprising that he didn't explore the arguments for and against
blocking the URLs at Google.com too."
"Nonetheless, this is the first judicial analysis of search
engine liability for defamation under UK law and it's undoubtedly a
brilliant result for Google and other search engines," said
Robertson.
A Google spokesperson told OUT-LAW: "We are pleased with this
result, which reinforces the principle that search engines aren't
responsible for content that is published on third party
websites."
"Justice Eady made clear if someone feels they have been defamed
by material on a website then they should address their complaint
to the person who actually wrote and published the material, and
not a search engine, which simply provides a searchable index of
content on the Internet," he said.
