When are search engines liable?
Published on 18 Aug 2009 at 4:14 pm.
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Filed under Internet.
Blog Author: Cate Haywood
Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc [2009] EWHC 1765 (QB)
The High Court has set aside an Order to serve Google Inc out of the jurisdiction, on the basis that the defamation claim against it had no reasonable prospect of success. A reasonable prospect of success is a requirement of the Court Rules allowing service out of the jurisdiction.
Background and Facts
Metropolitan International Schools Ltd (”MIS”) is a distance learning course provider. It issued proceedings against Google UK, Google Inc and a third party website in respect of statements published on a web discussion forum which were alleged to be defamatory, in that they bore the meaning that MIS’ Train2Gain courses were a scam. Google searches on the product name produced the scam allegation as part of a snippet of information accompanying the hyperlink.
As Google Inc was domiciled in the US, permission to serve the claim out of the jurisdiction was obtained. Google Inc made applications to have the order for service out of the jurisdiction set aside and for a ruling that the Court should decline jurisdiction on grounds of public policy, abuse, non-publication, and defences under s. 1 Defamation Act 1996, regs 17 - 19 of the E-commerce Regulations 2002, and innocent dissemination at common law.
The Judgment
A key issue was whether Google Inc, the operator of the search engine, was a publisher at common law. If it was not, Google Inc argued, there was no reasonable prospect of succeeding in a claim and the order for service should be set aside.
Much turned on the way in which search engines like Google operate. There was evidence that Google Inc had no control over the search terms entered by users or over material placed on the web. Furthermore, the searching process was automated. With this in mind, Eady J took the view that Google Inc could not be characterised as a publisher at common law. It had “merely, by the provision of its search service, played the role of facilitator“.
The Judge noted that it was well established that a person can become liable for a publication of a libel by permitting it to continue when he has the power to prevent it doing so. However, he took the view that Google Inc was not in an analogous position to a website host as it could not ensure that the words would never reappear; they may be thrown up by a future search.
Google Inc had taken steps to block certain offending URLs once they were identified. He took the view that Google Inc should not be fixed with liability on the basis of authorisation, approval or acquiescence either, while efforts were being made to block offending URLs.
Other defences had been raised by Google Inc to support its contention that the claim had no reasonable prospect of success. These included a defence under s.1 Defamation Act 1996, the defence of innocent dissemination at common law and defences under the E-commerce Regulations 2002.
The Judge concluded that the defence of innocent dissemination at common law had not been abolished in 1996 but did not assist a defendant whose attention had been drawn to the defamatory content.
Further, if Google Inc had needed to rely on s.1 of the Defamation Act, it was difficult to see how it qualified for s.1 protection by relying on the fact that it had taken reasonable care in relation to the publication, because its process had no human input and was an automated one.
The UK Government had already taken the view that the protection of the E-commerce Regulations did not extend to search engines. Accordingly, the Judge held that statutory intervention would be needed before a search engine might be considered a webhost within Regulation 19 and thereby able to benefit from protection under the E-commerce Regulations.
On this basis, the Judge set aside the order for service. There was, in the Judge’s view, also a material misrepresentation on the application to serve out of the jurisdiction which justified the order being set aside.
Comment
This is the first time that the question of a search engine’s liability for defamation has been dealt with in the English Courts. The decision will be welcomed by search engine providers as it offers them some comfort.
While the Government has chosen not to expand the protection afforded by the E-Commerce Regulations to search engines, Eady J’s development of common law principles does offer some protection to search engine providers.
The judgment does not, however, offer absolute protection to search engine providers as the fact that Google Inc had taken active steps to block various URLs that it had been made aware of was particularly important in the case. On that basis, it is likely that a search engine provider would be expected to take similar steps to block URLs when notified of defamatory statements appearing in search results, even if they are unable to physically remove the offending material.