Google has been found not liable for defamatory comments in its automatically generated search results. Metropolitan International Schools Limited (the Claimant) filed defamation proceedings against Designtechnica Corporation (Digital Trends) which operates the website www.digitaltrends.com. The Complainant alleged that two forum threads appearing on Digital Trends' website contained defamatory comments for which Digital Trends was liable. The Claimant joined Google UK Limited and Google Inc as the second and third defendants on the basis that when certain search terms were entered into the Google search engine, snippets containing the defamatory comments were returned in the search results. As Google Inc is a US company, the Claimant had to apply to the Court for permission to serve the proceedings out of the jurisdiction. Permission was granted by an order dated 1 May. Google Inc sought to have that order set aside or alternatively, a declaration that the court had no jurisdiction to try the claim or that, if it did have jurisdiction it should decline to exercise it.
Google Inc's primary basis upon which it said that the order should be set aside was that the Claimant had "no reasonable prospect of success" in its claim against Google Inc, as required by CPR6.37(1)(b). The key question to be decided was whether Google Inc was a "publisher" of the words in relation to which complaint was made. Eady J found that Google Inc could not be characterised as a publisher because "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." Even when Google Inc was made aware of the allegedly defamatory material, Google Inc did not become a publisher while efforts were being made to achieve a takedown in relation to a particular URL, as its behaviour could not properly be characterised as authorisation or acquiescence in continuing publication.
Although not necessary to do so in the light of his main finding regarding publication, Eady J also considered defences based on common law innocent dissemination, Section 1 of the Defamation Act 1996 and the intermediary liability provisions of the E-Commerce Directive. He found that the common law innocent dissemination defence was not abolished by the Defamation Act 1996, but that it would not avail an intermediary who had it drawn to its attention that a statement was arguably defamatory. He commented that it was difficult to see how a search engine would qualify for a defence under s1 of the 1996 Defamation Act. As for the E-Commerce Directive, he considered whether an advertising-funded search engine’s services were provided for remuneration, as necessary to fall within the E-Commerce Directive. He found on balance that they were so provided. However he found that it would need statutory intervention for a search engine to be treated as a host under the UK implementation of the Directive.
Even if Eady J had not found in Google Inc's favour on the "no reasonable prospect of success" point, he would have set aside the order allowing service outside the jurisdiction on the basis of certain misrepresentations and omissions made, probably inadvertently, to the Court by the Claimant when applying for the order.
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