Defamation and Search Engine Liability

July 20, 2009

A High Court judgment has clarified the liability in defamation of search engines. In a lengthy judgment from Eady J, on an application to challenge a permission to serve out of the jurisdiction, the way in which Google operates and its potential liability for search results has been closely examined.


The High Court case in question is Metropolitan International Schools Ltd (t/a SkillsTrain and/or Train2Game) v Designtechnica Corp (t/a Digital Trends), Google UK Ltd and Google Inc [2009] EWHC 1765 (QB). The application involved only the claimant (MIS Ltd) and the third defendant (Google Inc) but, since permission to serve outside the jurisdiction required the claimant to show a reasonable prospect of success, a good deal of the factual substrata was covered.


The basic case of MIS is that Designtechnica hosts web forums that include threads which defame MIS by, inter alia, accusing them of various sins, from providing wildly poor value for money in their distance learning courses to exploiting students and being little more than a scam. Google were a defendant because it ‘published or caused to be published at and/or a search return for the Train2Game thread which . . . set out the following words defamatory of the Claimant as the third and fourth highest search result: “Train2Game new SCAM for Scheidegger”’ (Scheidegger being a former trading name of MIS).


Eady J was able to distinguish the Godfrey v Demon Internet situation; he regarded Google as having no real control over the allegedly defamatory material appearing on the screens of searchers. Crucially, therefore, he found that Google was not the ‘publisher’ of the snippet. He seemed, perhaps paradoxically, to be influenced by the fact that Google’s UK arm (ie had blocked access to named urls. His comparison (at [52]) with a library catalogue is especially interesting.


Among other matters canvassed in the case, albeit that the result turned largely on whether Google was a publisher, was the issue of whether the common-law defence of innocent dissemination still exits notwithstanding it having apparently being superseded by the defence in the Defamation Act 1996, s 1. The judge held that it did indeed still exist. He also took the view, in the one minor downside of the judgment for Google, that it was difficult to see how the defence in s 1(1)(a) could avail Google if it was the publisher of the ‘snippet’.


The judgment also includes (at [81]-[114]) an analysis of the application of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No 2013) to the facts. Legislation in other European jurisdictions is considered, but Eady J thought that ‘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. I think that, for the Third Defendant to be classified as or deemed a “host”, statutory intervention would be needed.’


There is no doubt that the case involves a substantial win for Google but it does have to be borne in mind that the case might well have failed, as against Google, on a number of practical grounds. Moreover, this is a first instance decision having influence rather than strict authority as a precedent, although the care with which the judgment is put together (and the dearth of alternative authorities)  suggests that it wil be highly influential should similar facts arise.