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Out-Law News | 17 Jul 2009 | 3:25 pm | 7 min. read
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 Mr Justice Eady's ruling focused on Google's attempt to have that permission withdrawn.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.
Planning white paper: what it means for developer contributions and costs of development