Google not liable for defamatory statements in search results

Updated August 2009

An attempt to hold Google liable for allegedly defamatory statements appearing in its search results has recently been defeated in the High Court. The case is the first time that the liability of a search engine has been subject to judicial consideration under the law of defamation in this country.

Facts
The claimant, Metropolitan International Schools (MIS), provided adult distance learning courses under the name 'Train2Game'. Designtechnica maintained a website which included a forum with a thread title referring to Train2Game as a 'scam', together with other derogatory comments. MIS commenced proceedings against Designtechnica for defamation in respect of the allegations.

As the comments also appeared in Google's search results, MIS joined Google's UK and US operations as defendants in the proceedings. MIS claimed Google was liable as a publisher of the defamatory statements. Google responded that it had no responsibility for the publication of the comments and that there were grave implications of holding search engines liable for the content of their results.

In holding Google not liable, the judgment closely examined the way in which Google operates and its potential liability for the content of search results.

Decision
To succeed in a defamation claim against Google, MIS would have to show that:

• the statement identified MIS;
• it lowered MIS in the estimation of right-thinking members of society; and
• that Google published those defamatory words.

The judgment focused on this final element of whether Google could be regarded as having 'published' the comments. It was recognised that to be a publisher there had to be "knowing involvement in the process of publication of the relevant words. It was not enough that a person merely played a passive instrumental role in the process". It was noted that when a Google search is carried out it is performed automatically and there is no human input. Also, results snippets are thrown up on the user's screen in response to the user's search terms, over which Google has no control.

It was therefore decided that as Google had no real control over the allegedly defamatory material appearing in the search results, it did not have responsibility for publication. "It has merely, by the provision of the search service, played the role of facilitator". It followed that Google could not be liable for defamatory material in its search results.

The judgment considered whether the legal position would be different if Google had been informed of the defamatory content of a snippet. The fact that Google had tried to block certain URLs notified to it by MIS was acknowledged, but as Google has no control over the search terms it was not possible to take comprehensive steps to prevent the defamatory comments appearing in search results. It was therefore decided that in this scenario a search engine operator would still not be liable.

Comment
In the absence of any previous English case dealing with the liability of search engines, this case will be welcomed by the industry. Google commented "we are pleased with this result, which reinforces the principle that search engines aren't responsible for content that is published on third-party websites".

The outcome is consistent with the outcome of a previous case, Bunt v Tilley [2007], which concerned the liability of ISPs. In that case the High Court decided that an internet intermediary, acting merely as a passive medium of communication, could not be characterised as a publisher.

Assessing the application of the law to scenarios that were not necessarily envisaged at the time the law was developed, is a challenge for businesses operating in the technological arena. The recent Google decision represents another increment of guidance in the application of the laws affecting internet liability.

If you would like more guidance on this or other internet liability issues, please contact TLT's Technology & Media group.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2009. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.