A recent case in the UK (MIS Limited v Google) found Google not liable for defamatory statements in its search results (see link to full article below).
The judgment is a pragmatic and well-reasoned one that will reassure website operators. It backs up a similarly pragmatic decision in the New Zealand High Court last year (Sadiq v Baycorp, albeit only a “procedural” decision).
The risk of liability for third-party defamation can be one that lurks at the back of the mind for many website owners. It is certainly an issue to be aware of. On blogs and forums, the risk of someone posting a defamatory comment is probably the main legal risk present. This risk cannot be limited by terms and conditions.
The importance of the Google case is the pragmatic, realistic appoach taken by the UK High Court. It said:
“It is fundamentally important to have in mind that [Google] has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user’s request unless it has taken some positive step in advance.”
What the judge is saying is that there is no reasonable way, within its existing website functionality and operational/business model, that Google could prevent the defamation from appearing in its search terms. In contrast, had the judge been so inclined, there are plenty of “unreasonable ways” that Google could have prevented/mitigated the defamation, such as:
- Having an employee check every search snippet
- Disable search snippets
- Allow users to delete a search snippet, etc.
These are clearly unreasonable, disproportionate and would harm Google considerably. The Court found nothing wrong with Google saying, in effect, “this is how our system works, yes it will repeat defamation where it exists, but we cannot help that without significantly changing our technology and business model.”
The Court took a similarly pragmatic approach to the notice-and-takedown process:
“It may well be that [Google’s] ‘notice and take down’ procedure has not operated as rapidly as [the plaintiff] would wish, but it does not follow as a matter of law that between notification and ‘take down’ [Google] becomes or remains liable as a publisher of the offending material. While efforts are being made to achieve a ‘take down’ in relation to a particular URL, it is hardly possible to fix [Google] with liability on the basis of authorisation, approval or acquiescence.”
A very useful statement to have on the judicial record. This compares with the implied demand by the plaintiff that, in effect, any allegation of defamation should be met by an immediate, no-questions-asked take-down by Google, followed by a fuller review.