Online defamation - A new exemption for search engines?

In a landmark decision, the High Court has considered, for the first time, the liability of search engines for defamatory words which appear in search results.

The case of Metropolitan International Schools Limited v (1) Designtechnica Corporation (2) Google UK Limited (3) Google Inc concerned defamatory comments posted on the website bulletin boards of Designtechnica Corporation, a US based company which owns and operates the website digitaltrends.com (the "Website"). The issue in the case concerned whether Google Inc was liable for defamatory comments contained in search results connected to the Website. Essentially, when a Google search was made using certain terms, it resulted in a link to the Website and a summary which included the title of a thread from one of the Website's bulletin boards: "Train2Game new SCAM for Scheidegger". The Claimant, which traded under the name "Train2Game", contended that these words were plainly defamatory and that Google Inc was liable for their publication.

Was Google Inc a "publisher"?

The key issue before the Court was whether Google Inc was the publisher of the words complained about. If not, then it could not be liable in defamation.

Mr Justice Eady decided that Google Inc could not properly be regarded as a publisher. To fix someone with responsibility for publishing a defamatory statement, there must be present a mental element on behalf of that person i.e. the person knew / authorised / acquiesced in the publication of a defamatory statement. That mental element was not present here because the search result was produced by an entirely automated process. As Eady J put it:

"When a search is carried out by a web user via the Google search engine it is clear, from what I have said already about its function, that there is no human input from the Third Defendant. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programmes...There being no input from the Third Defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user's screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator."

That is not to say that a search engine will never be liable. Mr Justice Eady suggested that once notice was given of the existence of defamatory material, a search engine ought to take reasonable steps to prevent access to that material.  This will depend on the circumstances and Eady J was sympathetic to the practical difficulties which Google Inc faced in preventing such access.  Google Inc had operated a "notice and take down procedure" which involved blocking access from google.co.uk to specific URLs identified by the Claimant. The court heard evidence that it was not practically feasible for Google Inc to completely prevent the offending material from appearing in the search results. Although specific URLs could be blocked, there was always the possibility that the material might be published at an unknown URL. What is more, Google Inc argued that filtering key words or combinations of key words would be ineffective, since some offending material would still slip through the net and other legitimate material would be blocked. In this case, it was considered sufficient for Google Inc to block access to specific URLs when these were identified by the Claimant.

Was Google Inc a "host"?

Having concluded that Google was not a "publisher" and was not liable for defamation, it was not necessary for Eady J to rule on whether any of the defences relied on by Google Inc were valid. However, in a non-binding part of the judgment, Eady J considered Google Inc's argument that it was shielded by defences available under the Electronic Commerce (EC) Directive Regulations 2002 ("the Defences"). These Defences limit the liability of internet intermediaries where they act as mere conduits, caches or hosts of information and provide immunity from civil liability for damages and from criminal liability.  However, and importantly, they do not prevent a Claimant from obtaining injunctive relief.

Mr Justice Eady acknowledged that, in the UK at least, the boundaries of the Defences are uncertain.  Although several other EU Member States, with the encouragement of the European Commission, have chosen expressly to extend protection to search engines, the UK government stated in 2006 that it saw no need to do so. Among the reasons cited by the government were that there had been no significant legal action in the UK since the UK regulations came into force and there was little evidence that the issue was causing significant legal uncertainty.  Instead, the government preferred to wait for further guidance from the European Commission. Unfortunately, that guidance has not been forthcoming.  The European Commission is required to review every two years the application of the EC Directive on Electronic Commerce, which is implemented in the UK through the 2002 Regulations. As part of that review, the Commission must consider whether proposals are needed to address the liability of search engines and also providers of hyperlinks. However, the European Commission is substantially behind schedule. The first - and so far, the last - European Commission review was carried out in 2003.  

In this context, Eady J considered the precise wording of the Defences and expressed doubt as to whether Google Inc's activities met the requirements for "caching" or acting as a "mere conduit". In theory, that left open the possibility that the "hosting" defence might apply. However, given the government's stated position, it is not surprising that Eady J declined to take the issue further stating "the United Kingdom government has so far taken the view that it is unnecessary or inappropriate to extend protection expressly to search engines. It would not be appropriate, therefore, for me to proceed as though there were a comparable statute in effect in this jurisdiction."

Comment

The case will come as welcome relief for internet search engines as it confirms that they will not be liable for defamatory words which appear in their search results.  However, that does not mean total immunity.  Eady J's comments on the position following notice suggest that search engines will need to take reasonable steps to block such material.  This would therefore bring search engines into line with ISPs and owners/operators of website bulletin boards who must remove defamatory material upon notification or else face liability for such statements.

For further information, please contact Rhys Griffiths or Emily Parris.