Monday, 20 July 2009

Search engines’ English law defamation risk after Metropolitan International Schools Ltd v Designtechnica Corp

I’ve now read the case which I pointed out the other day - Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) & Ors [2009] EWHC 1765 (QB) (16 July 2009).

Main point – search engines (except Mahalo), be happy!

The main takeaway: Metropolitan is good news for search engines which operate like Google, displaying search results in an automated way based on their algorithms, without human intervention. (So, not so good for the likes of human-powered search engines like Mahalo.)

Search engine providers like Google or Bing can now worry a lot less about the risk of being done for defamation in the UK just because their search results happen to include a snippet of defamatory material from a crawled website – at least, if (1) they have a quick(ish) take down policy, and (2) take steps to block the URLs concerned from UK visitors once they’ve been notified of the defamation.

This case involved a UK provider of distance learning courses who found libellous comments about it on a US reviews site. The UK provider sued not just the US site but also Google US and Google UK, on the basis that Google search results showed snippets from the US site – including the defamatory words.

But the hearing here was only on one narrow issue: should the judge cancel a previous Master’s order allowing the claimant to serve proceedings in the USA on Google US? (It’s necessary to serve proceedings – documents about the claim - against a defendant, before a court can rule on the case.)

Here, the judge (Eady J.) decided to set aside the order giving permission to serve on Google US abroad, on the basis that the claimant had no reasonable prospect of succeeding against Google US (and also, separately, because there had been misrepresentations to the Master by the claimant, which in themselves would have been enough reason to reach the same result).

Could Google US be sued for defamation in the UK?

Eady J. first addressed the issue of whether Google US could be sued in the UK in this case.

If the relevant words are read by anyone in the UK, they can be sued for in the UK. (Given that on the Web anything public can effectively be read anywhere, blocking filters aside, websites need to be aware that they run the risk of being sued anywhere in the world where their site content is illegal, and certainly may risk being sued for defamation in the UK. Whether other countries will enforce a UK libel judgment is another matter.)

However, Eady J. also noted that for claims of internet publication it’s the claimant who has to prove that the words complained about were actually read by someone in the UK, and noted that just because people have seen the criticisms of the claimant on the US forum it doesn’t mean they saw the snippet in Google US’s search results.

He also pointed out that this wasn’t a case of "libel tourism" as the claimant operated in the UK and the damage to its reputation would be in the UK.

So basically, if this case goes to trial (which very likely it will, if at all, only against the US site hosting the forum), the claimant will have to show that people in the UK read the defamatory words (not hard to do, based on previous English cases).

Was Google US liable as “publisher” of the defamation?

The appropriate question was, should a search engine like Google:

  1. be regarded as a mere facilitator in respect of the publication of the "snippet"?
  2. even after the date of notification (about the defamatory snippet)?

The central point was: should Google US be regarded as a publisher of the defamatory words, at all?

Under English common law, for a person to be fixed with responsibility for publishing defamatory words there needs to be present a mental element (Eady J. summarised his own judgment on the point in Bunt v Tilley). You have to mean to publish it, before you can be liable for the publication.

In deciding Google US was merely a facilitator, it was an important point for Eady J that a Google search is done automatically, without any human input from Google US personnel: the extract from the defamatory webpage that gets displayed in the search results depends on what the user searched for, which of course depends on the user’s entered search terms, and that can’t be controlled by the search engine in advance, so the search engine isn’t a “publisher” of those words - see this quote.

Was Google liable after the takedown notice, as "authorising” the defamation?

What about after Google US were told that the search results snippet was defamatory - could they be sued for libel by authorisation or acquiescence?

Here, acknowledging the difference between hosting providers and search engine providers, Eady J. accepted the (relative) powerlessness of Google US to control what’s thrown up by search results, and the practical difficulty of blocking certain words without disproportionately blocking too much other material.

It seems clear that, in deciding Google US weren’t responsible for publication between notification and take down, the judge felt the following were significant factors:

  1. Google’s lack of knowledge of the offending material before the take down notice, Google’s take down policy and its blocking of the affected URLs from access via google.co.uk after getting the notice, plus
  2. the hosting site’s ability to control the content on its own site and its indexing by search engines (in other words, it makes more sense for the claimant to go after the US site hosting the offending message board, rather than search engines).

Other points of interest

The key ruling was of course that Google US wasn’t responsible for the “publication” of the defamatory remarks through their display in search engine results snippets, so the claimant had no reasonable prospect of winning a lawsuit against Google US and the order allowing him to serve proceedings on Google US should be cancelled.

The rest of what Eady J. said was his “obiter” opinion, i.e. incidental to the main decision, so it won’t carry as much weight in future cases – especially as the issue before the court was on a procedural matter rather than a decision on liability.

However, given that there have been hardly any UK cases on these issues, it’s likely that UK judges in future cases will look to what he said and take it, if not as gospel, certainly quite seriously.

With that in mind, here are some other observations from his judgment:

What about the common law defence of innocent dissemination?

Not abolished by the Defamation Act 1996 but effectively superseded by it, in the judge’s opinion.

Either way, someone with knowledge of the defamation can’t take advantage of the defence, in his view.

(See the relevant quotes from the judgement.)

Or the Defamation Act 1996 section 1 defence?

Again, if someone knows about the defamation, eg. after a takedown notice drawing the issue to their attention, then Eady J. thinks they can’t use this defence.

Is a search engine protected as an “information society service” under the The Electronic Commerce (EC Directive) Regulations 2002?

The Electronic Commerce Directive on which these Regulations were based was designed to foster cross border services within the EU: in full, that’s Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).

Search engines aren’t covered by the E-Commerce Directive explicitly, but in Eady J's view on balance they are, by intention, because even if not paid directly by the search engine user, they do provide their services for remuneration in the form of advertising as mentioned in recital 18 of the Directive. (In the case of EU Directives, the intention, as reflected in recitials, of course matters as much if not more than the actual words used - in contrast with the historically very literal English / US approach)

However, being covered by the Directive isn’t enough - in the UK, what matters is whether UK law has implemented the Directive in such a way as to cover them. (Or, if it hasn’t, whether a judge is prepared to ignore the UK implementation and go with the Directive anyway!)

Now in Eady J.’s opinion, under the Regulations a search engine isn’t expressly considered a “host”, unlike in some other EU states, so a search engine isn’t protected by the “host” defence under regulation 18 - not unless and until the UK Parliament passes laws to bring them explicitly under the “host” defence umbrella.

He also pointed out that the defences under the Regulations only help in relation to criminal liability or monetary damages in any event; you can’t rely on them if you’re sued for an injunction to make you do, or not do, something.

(It also seemed implicit from the judgment, although the judge didn’t really say much about it, that in his view search engines don’t qualify to benefit from the protection given to “mere conduits” under Regulation 17 or “caches” under Regulation 18 – see para 88 onwards.)

What about Google UK?

Now the hearing here didn’t involve Google UK at all (strictly a separate company from Google US).

Given that it seems Google UK have even less control than their mother ship over the search engine bit of Google, I imagine they’ll be applying to get the case against them dismissed too.

It’ll be interesting to see what transpires if the case against the US website goes to trial.

Disclaimer

This isn’t legal advice, just my own attempt at analysing and summarising the issues. I’m planning to learn technology law but I’m only starting; my background is finance, so I may miss things which those who’ve specialised in tech law for years take for granted (don't expect a brain surgeon to be able to operate brilliantly on your heart straightaway!).

This is of course only about the position under English law. YMMV.

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