Is Google a publisher according to Google? The Google v Equustek and Duffy cases

October 10th, 2017 by Barry Sookman Leave a reply »

Is Google, the operator of the world’s most popular search engine, a publisher entitled to the constitutional protections accorded to publishers of free speech? Or is Google a passive/neutral intermediary which has no control over what its search engine algorithms disseminate and which doesn’t publish the information in, or hyperlinked to, it’s search results? Google argues it is and is not a publisher, depending on which position will best exonerate it from legal demands including court orders that it de-index URLs and websites from which illegal content is made available.

Several cases illustrate Google’s strategic positioning. Google was recently ordered by the Supreme Court of Canada in the Google v Equustek case to de-index websites from which goods that misappropriated Equustek’s trade secrets were being offered for sale. After losing in three levels of Canadian courts Google thumbed its nose at Canada’s highest court and launched a proceeding in California seeking an order that the Canadian court order can’t be enforced against it in the United States. One of its main arguments is that it’s algorithms are programmed to make choices and to publish content and, as such, it is entitled to First Amendment protection. Google’s Factum in support of its motion for a preliminary injunction makes the argument as follows:

A search engine’s display of search results in the order it sees fit is “fully protected First Amendment expression.” Jian Zhang v. Baidu.com Inc. (“Baidu”), 10 F. Supp. 3d 433, 438-39 (S.D.N.Y. 2014) (granting motion to dismiss case seeking to compel a search engine to post unwanted search results). Because “information that is illegal in one country can be perfectly legal in others,” one of the principles that guides Google’s decisions on search results is that “one country should not have the right to impose its rules on the citizens of other countries.”… Just as newspapers have the First Amendment right to make editorial decisions about what content to print, Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974), operators of search engines possess a First Amendment right to make editorial decisions about which of the trillions of webpages on the internet to display in search results. Baidu, 10 F. Supp. 3d at 435.

Unquestionably, the First Amendment protects Google’s display of search results within the United States. Relying on Miami Herald v. Tornillo, as Baidu did, the Middle District of Florida recently held that “Google’s actions in formulating rankings for its search engine . . . are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication.” See e-ventures Worldwide, LLC v. Google, Inc., Case No. 2:14-cv-646, 2017 U.S. Dist. LEXIS 88650, at *11-12 (M.D. Fla. Feb. 8, 2017) (granting summary judgment on First Amendment grounds). “The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.” Id. at 9; accord Langdon v. Google Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007) (dismissing claim alleging that Google’s PageRank search results algorithm ranked the plaintiff’s webpage unfairly); Search King Inc. v. Google Tech., Inc., Case No. 02-cv-1457, 2003 WL 21464568, at *4 (W.D. Okla. May 27, 2003) (“PageRanks are opinions—opinions of the significance of particular web sites as they correspond to a search query . . Google’s PageRanks are entitled to ‘full constitutional protection.’”)

Of course, even publishers which have the benefit of First Amendment rights are subject to obligations not to publish illegal materials. In the Equustek case, the Supreme Court found the de-indexing order “is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” This is consistent with the law in the United States where injunctions are granted to restrain illegal speech despite First Amendment rights including speech that infringes upon copyrights,[1] or which, as in the case involving Equustek, involve a misappropriation of trade secrets.[2]  That hasn’t stopped Google from seeking injunctive relief in the United States, even though Equustek’s lawyer made it clear in the argument before the Supreme Court that Equustek did not intend to take action to have the order enforced in the U.S.

When Google, however, seeks to avoid responsibility for disseminating illegal materials such as those that are violate privacy rights or are defamatory, it takes the opposite position claiming it is a passive internet intermediary; that it’s search results do not actually publish the content made available in or hyperlinked from snipptes; and that it, and presumably other search engines, hold a special position and, unlike any other person, they should simply be immune from liability. This positioning by Google has left numerous persons no choice but to sue the planet’s most deep pocket, litigious, defender of the right to disseminate or re-disseminate whatever it wishes to regardless of the harm caused to others.

In successive such cases, Google argued it cannot be held accountable for damages caused by its search engines. A case in point is the litigation between Max Mosley and Google. Mr Mosely successfully sued Google in the U.K., France and Germany to obtain orders requiring Google to de-index websites from its search results that were clearly violating his rights to privacy. See, Barry Sookman Internet justice: Mosley v Google. In the Mosely cases Google claimed there was no basis to make an order against it. It claimed to be merely “passive”, the hallmark of a true neutral intermediary. The German Court disagreed:

“the search engine of the defendant is not just of a merely technical, automatic and passive nature. The defendant not only makes the technical means available, but searches the Internet using software, stores the retrieved image files not least for reasons of efficiency in the context of display on its own servers and “connects” them with requests from users. Thus, it is not limited to the provision of information for access by third parties   It creates the link between the contents – in this case images – which have been posted on the Internet and the search terms entered by a user.” See, D. Crossley, “Case Law, Hamburg District Court: Max Mosley v Google Inc”, online: Inforrm’s Blog”.

Google made the same argument in a case involving Miloran Trkulja. He sued Google for defamation. His case is now before the High Court of Australia after an Australia appeals court expressed the opinion that Google can be liable as a secondary publisher, but dismissed the case because of its procedural posture. In the case, Google Inc v Trkulja [2016] VSCA 333 (20 December 2016), Google claimed that the results produced by its automated search engines including its autocomplete feature did not publish defamatory materials, even once Google received notice of the alleged claim. The court rejected this contention holding that Google was a publisher and is responsible for the damages caused by its automated systems once it has notice of the claim.

On first principles, we consider that a search engine, when it publishes search results in response to a user’s enquiry, should be accounted a publisher of those results — and in this we include autocomplete predictions. It is a participant in a chain of distribution of material.

We also consider that a search engine should be accounted a secondary publisher. It is true that its automated response picks up words used in the search term and in identified webpages…

We live in a world where automated action is becoming, if it is not already, the norm. From automated processes in a factory to the pervasive ‘robo’ calls during election campaigns, computer-generated programs are at work. Yet no one would think of saying that a car manufacturer does not intend to build a car, in the way in which it is constructed, because steps in the process are automated, performed in accordance with a computer program. And take the librarian situation. The place of a book on a library shelf, in accordance with its Dewey classification, has characteristically involved human assessment of that book’s content. But today, very many books can be accessed online. What if a librarian used a computer-designed automated system to give a book its Dewey classification? Would the file card, produced in such a way, not be published by the library because of the absence of direct human intervention? Would the librarian no longer (probably) be a secondary publisher? So to conclude would be, we think, a strange outcome. Would it be different if the computer program was not directly the work of human composition, but was designed by a computer — the element of human intervention being a further step removed?

We appreciate that the examples of computer-mediated actions which we have just mentioned do not precisely equate with the work of the Google search engine. For in each of the postulated situations the program is not, or would not, be designed to produce a particular result in response to an externally made request by resort to externally created material. But the examples do suggest that the fact that the defamatory matter complained of is the product of an automated response does not necessarily gainsay an intention to publish that material. When that consideration is supplemented by the facts that the Google search engine holds itself out as providing a means of navigating the web, that its role, in our judgment, is not passive and that in providing a search result it does more than merely facilitating contact between A and B, it seems to us that intention to publish that which is in fact published is an available conclusion. Concerns that thereby a search engine may become liable in defamation proceedings when that might be regarded as an unsatisfactory consequence are met, in our view, if it is concluded, consistently with those authorities which have considered the issue, that a search engine is a secondary publisher.

In Google Inc v Trkulja, Google went further than merely arguing that it could not be held liable for defamation. It also asserted that search engines should be entitled to a special immunity enjoyed by no other publishers for any liability whatsoever for defamation arising from automatically generated materials returned by the search engine in response to an individual user’s query. The Victoria Court of Appeals rejected the argument stating that would alter the balance in the law and would be a change only Parliament could make.

We are in no doubt that, so far as the law of defamation is concerned, the question of publication in the varying contexts of the world wide web gives rise to problems — some of greater and some of lesser difficulty. The problem of results produced by a search engine’s automated processes is an acute one. It has led to conflicting analyses in the common law world. The resolution to the issue of publication which we consider apt is not without its difficulties.

The great utility of search engines cannot be doubted. On the other hand, assuming that there is publication of automated search results, the prospect of a publication conveying defamatory imputations in a particular instance cannot be dismissed. A balancing of interests, in those circumstances, must be undertaken. We agree with the judge below that the balancing is a matter for Parliament, not the courts. The submission for Google that it would be too hard to get the various Australian jurisdictions to speak with one voice cannot deflect attention from what is the correct, rather than the expedient, course…

But one thing, in our opinion, is clear. If there is to be any immunity in favour of a search engine from liability for defamation, it must be conferred by legislation.

The most recent case of Google seeking complete absolution for its automated publication of defamatory materials is Google Inc. v Duffy [2017] SASCFC 130 (4 October 2017). In this case, the respondent (Dr Janice Duffy) paid for and received psychic readings over the internet. Those readings were false. She engaged in an online conflict with the psychics. Defamatory articles about her, calling her among other things a ‘psychic stalker’ and referring to her conflict with psychics were published on a website called the Ripoff Report. Other websites published material which derived from articles on the Ripoff Report. When Google’s search engine was used to search her name it reproduced content from, and hyperlinked to, the underlying webpages. The Autocomplete function of the search engine also produced an alternate search term ‘Janice Duffy Psychic Stalker’. In September 2009, Janice Duffy requested that Google remove the paragraphs. Google did not take steps to remove the paragraphs until March 2011.

Dr Duffy sued Google. Her case at trial was that the operation of the Google search engine resulted in three distinct acts of publication – the publication of search results comprised of title, snippet and URL, the publication of the underlying web page subject of the hyperlinks contained in the search result, being the title and the URL, upon the searcher clicking on either link, and, in the publication of the content of past searches by virtue of the operation of the autocomplete function.

The trial judge found that Google was a secondary publisher of some of the paragraphs from the time that the respondent had notified it that the search engine was producing the paragraphs. The judge awarded her (Aus) $115,000 inclusive of interest in general damages For a summary of the case see, Barry Sookman, Google liable for defamation through search and autocomplete features: Duffy v Google.

Google unsuccessfully appealed the trial judgement on several basis. In the decision which is long (189 pages), Kourakis CJ (Peek & Hinton JJ agreeing) held that the judge was correct to find that Google was a secondary publisher of the relevant paragraphs. The search results published by Google incorporated the defamatory material contained in the Ripoff Reports because it facilitated the reading of the defamatory material in a substantial and proximate way. The fact that the defamatory imputations were contained in search results which repeated material from the underlying pages did not deny their capacity to convey a defamatory meaning.

While the panel of 3 judges disagreed on several aspects of the law of defamation, they all agreed that Google’s operation of its search engines makes it the proximate cause of the republication of defamatory material for which it is liable once it has received notice of a claim. According to Kourakis CJ (with whom the other judges agreed):

The first issue to be considered in the complex case of dissemination through the World Wide Web is whether Google’s role as facilitator through its search engine is sufficiently proximate to the display of the search results themselves to constitute participation in the publication of their contents…

Google established the algorithm and programmes of its search engine and made that search engine available to all users of the internet. At the time of a search, Google, by the mechanism of its search engine, produces the snippet paragraphs, albeit at the request of its user. That conduct made Google a participant in the publication of the content of the paragraph to the person making the search even though that content derived from and was an electronic reproduction of, a webpage published by a third person. Google participated in the publication of the paragraphs about Dr Duffy produced by its search engine because it intended its search engine to do what it programmed it to do…

Google’s search results are published when a person making a search sees them on the screen of their computer or other device. The display of the search result is only possible because Google has developed, established and maintained the information technology capable of almost instantaneously trawling the World Wide Web and extracting the data searched for. Even though the search results are readable abstracts of material maintained electronically on the World Wide Web by others, Google’s conduct is an indispensable, proximate step in its publication to the searcher. It is Google which designs the program which authors the words of the snippet paragraph. Google’s conduct is the substantial cause of the display of the search results on the screen of the searcher’s device. The first element necessary for Google to be a publisher is therefore established…

The issue of republication of the Ripoff Report webpages is finely balanced. In one sense, the search results may be viewed as an invitation but the critical question is whether Google has, through the search facility it offers, republished the defamatory material in the Ripoff Report. Ultimately I have concluded that the paragraphs incorporate the contents of the Ripoff Report. I do so because Google’s facilitation of the reading of the Ripoff Report is both substantial and proximate. Google has republished the Ripoff Reports by abstracting sufficient material to inform the searcher of its contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to it though the hyperlink. The very purpose of an internet search engine is to encourage browsing and it is designed to achieve that purpose…

Google has knowledge of the probable content of the future search results of its search engine from the time someone notifies it of the existence of defamatory material in the results of a search which has been made for particular material. From that time its dissemination is no longer ‘innocent’. Thereafter, the only justification for the law allowing Google, as a secondary publisher, a reasonable time to ‘take down’ references to the defamatory material is the public policy favouring the dissemination of information generally. For that reason Google may be excused from liability for publications made by its search engines for such time as is reasonable necessary to block the source URL…

Google frequently also argues it cannot be liable for the content of search results, at least to the extent that the allegedly defamatory materials are accessible through hyperlinks in headings to web pages or elsewhere in snippets. In the Duffy case, Google sought to rely on the decision of our Supreme Court in Crookes v Newton [2011] 3 SCR 269. That decision dealt with whether providing only a bare hyperlink to defamatory content on the web could constitute publication for the purposes of the law of defamation. The court held it could not, but left open other situations including whether search results that Included hyperlinks could constitute publication. The Full Court of Australia, after referring to the Crookes case, also rejected Google’s assertion that it is not a publisher when its search results include snippets and hyperlinks to web pages that contain defamatory materials. Kourakis CJ rejected this stating:

I pause here to observe that a hyperlink does not have to take the form of a URL which once clicked will take the user to that website. Almost any text or image on a webpage can be hyperlinked. In the instant example when Google  search engine returns results the heading of the webpage is hyperlinked. I understand the reasoning of Abella J to distinguish between the text accompanying a hyperlink and the content of the material on the hyperlinked webpage with only the former being the publication of the search engine operator.

Further a bare hyperlink is unlikely to be defamatory on Abella J’s reasoning, whereas reproducing and hyperlinking a portion of defamatory text from the linked page will generally be defamatory and the party providing the link will be liable. As a general rule, that can be accepted. However, in certain circumstances, depending on both the ease with which the hyperlink can be accessed, and the information provided by the hyperlink (whether or not that information is defamatory in itself), hyper-linking can for all practical purposes constitute an incorporation of the defamatory material into the reference. If the defamatory material is incorporated into the hyperlink, the person making that reference is repeating the libel. Moreover, neutrality is not refutation. In those special circumstances the search result and hyperlink may be the electronic equivalent of handing over a text bookmarked to a certain page or line and inviting a person to read it. In that event the person providing the reference may be regarded as a secondary publisher.

I prefer to speak of incorporation, rather than adoption or endorsement, because lending or imparting weight to the truth of a defamatory imputation is not relevant of the law of defamation in any other context. Incorporation focusses the enquiry on whether the defamatory material is, as a factual matter, incorporated into the publication of the reference or hyperlinker. When referring to another source, the greater the information which is provided about the content of the reference material, irrespective of whether the reference repeats a defamation, the more closely connected the act of reference is to the publication of the referenced material. Indexing by reference to the title and author of the material will only rarely convey sufficient information about the contents so as to constitute a publication of the underlying webpage. However the addition of a snippet, or an abstract, of the material may do so. That is because the searcher only has to assess the snippet or abstracts presented to him or her instead of undertaking the laborious task of going to each reference and assessing them one at a time. A reference accompanied by a snippet or abstract of the defamatory material is even more likely to amount to an incorporation of the hyperlinked webpage. That is because the hyper-link, if used, will direct the searcher to that very material. A Google  search paragraph is the electronic analogue of the person who places a post-it note on a book which reads ‘go to page 56 to read interesting gossip about X’. This approach also sits more comfortably with the numerous ways in which a hyperlink might be constructed and thereby refer a user to the underlying page.

Hinton J reached a similar conclusion stating:

Turning to the question of whether the appellant published the underlying Rip-off Reports (the hyperlinked material), like the Chief Justice, I agree with the Judge’s conclusions.]I also agree with the Chief Justice’s additional reasons. The deep hyperlink taken with the snippet is more than a reference. The snippet entices and the hyperlink bespeaks a willingness on the appellant’s part to transport the enticed searcher immediately to the relevant web page for more information – to publish the web page to those who, having read the snippet, want more information. In my view it is unnecessary to refer to the concepts of adoption or endorsement here. By transporting the enticed searcher to the web page upon the searcher clicking on the hyperlink contained in the search result the appellant publishes to the searcher the web page once it is opened. I agree with the analogy of handing over a bookmarked text, the invitation to provide it having been extended by the snippet and accepted upon clicking on the hyperlink.

The Duffy case is yet another illustration of how difficult it can be for persons to obtain assistance from Google to protect their reputations, privacy, and intellectual property rights, As another commentator, Hugh Tomlinson, pointed out, Google will inevitably try to appeal the decision to the High Court of Australia.

When you are Google and have deep pockets, you can try to exhaust your opponents into submission, fight any potential precedent that could hold you accountable, and try to dissuade others from seeking to vindicate their rights online. When you are Google you can also vacillate between asserting you are a publisher when claiming First Amendment protection and denying you are a publisher when resisting other claims, in both cases to accomplish the same objective, namely, to seek immunity from any law that could compel search engines to stop publishing, or facilitating the publication of, any content including materials that are illegal or harmful to members of the public.

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[1] See, Ashcroft v. Free Speech Coalition, 535 US 234; Golan v. Holder, 565 U.S. 1. Also, Cohen v. Google, 25 Misc.3d 945 (2009) “In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.”

[2] DVD Copy Control Ass’n, Inc. v. Bunner, 75 P. 3d 1 (Cal. Sup. Ct. 2003)

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