A fascinating decision last month from Eady J concerned defamation and whether or not Google could be held liable as a publisher. Google will be pleased as Eady J held that Google Inc. could not be regarded as a publisher of words alleged to be defamatory. This was because the words appeared in search results generated automatically. The case generates interest due in main to the significant lack of case law in the UK on this area.
Eady said “There appears to be no previous English authority dealing with this modern phenomenon. Indeed, it is surprising how little authority there is within this jurisdiction applying the common law of publication or its modern statutory refinements to Internet communications. The only two decisions that would appear to be relevant to the role of Internet intermediaries are at first instance: Godfrey v Demon Internet Ltd and Bunt v Tilley.
It also seems clear that Google did seek to block the offending content also which suggests that search engine providers may need to consider blocking specified URLs when they are notified of defamatory content appearing in search results.
Eady J also reviewed the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No 2013)112 they too make interesting reading as he trawled through the legislation vis a vis member states. He did not wish to extend protection to search engines and said “As I have already indicated,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 [GOOGLE] to be classified as or deemed a “host”, statutory intervention would be needed. I prefer to reach my conclusion by reference to straightforward common law principles, albeit adapted to the new environment of the Internet, and in particular I attach importance to the absence of knowledge on the part of the Third Defendant in relation to the offending material prior to the Claimant’s complaint and, moreover, the absence of any conduct on its part thereafter which could properly be characterised as authorisation or acquiescence in continuing publication. There may have been delays in the “take down” procedure (whether for technical or other reasons), but even while the attempt is being made to block access to any specific URL, it is impossible to characterise the state of mind of any relevant employee as amounting to authorisation, approval or acquiescence. I believe that my conclusion, although it is an attempt to apply common law principles, is not likely to give rise to any inconsistency with the way that matters are approached in other European jurisdictions or with an open and free internal market”.
More on this to come.