Google not liable for defamatory search snippets

Google is not the publisher of defamatory words that appear in its search results, the High Court ruled yesterday. Even when Google had been told that its results contained libellous words, it was not liable as a publisher, said Mr Justice Eady.

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 Mr Justice Eady's ruling focused on Google's attempt to have that permission withdrawn.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 2001 and 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, 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."