Update 65: September 1, 2009
1. Search engine liability in the UK and
According to a high court judge in London,
Google is not the publisher of defamatory comments that appear in its search
The case has been brought by London based
Metropolitan International Schools (MIS), which runs distance learning courses.
The school argued that postings in the forum of the website Digital Trends were
defamatory and that Google should be held liable because links to these postings
appeared in its search results and the snippets also consisted out of these
defamatory comments. MIS also asked the judge for an injunction, preventing the
display of search results that suggest it is involved in scam, without the need
to provide Google with the URL of the infringing content in the future.
The court did not agree: Google is merely a
conduit to information, not a publisher in its own right: "When a snippet is
thrown up on the user's screen in response to his search, it points him in the
direction of an entry somewhere on the Web that corresponds, to a greater or
lesser extent, to the search terms he has typed in. It is for him to access or
not, as he chooses. It is fundamentally important to have in mind that the Third
Defendant 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. There being no input from the Third
Defendant, therefore, on the scenario I have so far posited, it cannot be
characterised as a publisher at common law. It has not authorised or caused the
snippet to appear on the user's screen in any meaningful sense. It has merely,
by the provision of its search service, played the role of a facilitator."
This is the first judicial analysis of search
engine liability for defamation under UK law. Although the decision is brilliant
for search engines and as a Google spokesman put it "reinforces the principle
that search engines are not responsible for content that is published on
third-party web sites", an important question remains unanswered:
In the MIS case, Google removed the links to
the defamatory comments after notification. The judge hinted that there still is
a responsibility of search engines to take down content after receiving a
complaint about libellous material. He did not say how fast search engines must
act and how effective the take down system must work: "There are some steps
that the Third Defendant can take and they have been explored in evidence in the
context of what has been described as its "take down" policy. There is a degree
of international recognition that the operators of search engines should put in
place such a system (which could obviously either be on a voluntary basis or put
upon a statutory footing) to take account of legitimate complaints about legally
objectionable material. It is by no means easy to arrive at an overall
conclusion that is satisfactory from all points of view. In particular, the
material may be objectionable under the domestic law of one jurisdiction while
being regarded as legitimate in others. In this case, the evidence shows that
Google has taken steps to ensure that certain identified URLs are blocked, in
the sense that when web-crawling takes place, the content of such URLs will not
be displayed in response to Google searches carried out on Google.co.uk. This
has now happened in relation to the "scam" material on many occasions. But I am
told that the Third Defendant needs to have specific URLs identified and is not
in a position to put in place a more effective block on the specific words
complained of without, at the same time, blocking a huge amount of other
material which might contain some of the individual words comprising the
offending snippet. It may well be that the Third Defendant's "notice and take
down" procedure has not operated as rapidly as Mr Browne and his client would
wish, but it does not follow as a matter of law that between notification and
"take down" the Third Defendant becomes or remains liable as a publisher of the
offending material. While efforts are being made to achieve a "take down" in
relation a particular URL, it is hardly possible to fix the Third Defendant with
liability on the basis of authorisation, approval or acquiescence."
What also makes the decision a must
read, is the mentioning of several other lawsuits about search engine liability
in other countries, most of them even I had not heard about before:
Spain: decision of Mai 13, 2009, Palomo v. Google
"This was a recent case in the Court of First
Instance in Madrid on 13 May 2009: Palomo v Google Inc. The
complaint was in relation to search results providing hyperlinks to
sites carrying defamatory content. The claim was rejected and the
Third Defendant held not liable in law for disseminating third party
content. Reference was made to European legislation moving towards
the position that there should not be any obligation on Internet
intermediaries to supervise such content. Where "actual knowledge"
(in the sense defined above) has not been established, the law
provides for "exoneration from responsibility" on the part of
businesses offering intermediary services."
Laws on search engine liability in Bulgaria and Romania
"Bulgaria enacted an Electronic Commerce Act
in December 2006 which provides that an automated search engine
service shall not be liable for the contents of data obtained where
it has not (i) initiated the transmission of the data, (ii) chosen
the data recipient, or (iii) chosen or altered the data obtained.
This corresponds to the provisions of the Austrian amendment, to
which I have referred above.
Romania has also extended its law to provide
express protection for search engine services in Article 15 of Law
No 365 of 7 June 2002, dealing with Electronic Commerce. This
provides for protection if the search engine service was not aware
that the information in question was illegal, and not aware of any
facts or circumstances showing that the information could prejudice
the rights of a third party. If it is so aware, it may still be
protected if it acts rapidly to eliminate the possibilities of
access or to block its use. The search engine service is responsible
for the information when a public authority has determined that it
is illegal. There are similar limitations on liability to those I
have identified with reference to the Spanish law."
France, decision from March 19, 2009, SARL Publison System v. Google France
"Another recent example was the French
decision (Court of Appeal in Paris, 19 March 2009): SARL Publison
System v SARL Google France. The claimant sued over a defamatory "snippet"
raised by Google's search engine and a hyperlink to the primary site.
It was held that a search engine was not under any duty to assess
the lawfulness of the indexed website. To the extent that it
involves an indexing robot, and neither creates nor hosts the
disputed information, it was said that Google was not under any
automatic obligation to carry out monitoring. Furthermore, in view
of the considerable volume of information arriving each day on
Internet sites, the operator of the search engine was unable to
analyse the content made available to users via its indexes."
Netherlands: Decision of April 26, 2007, Jensen v. Google
"There was also a Dutch decision in the
District Court of Amsterdam on 26 April 2007: Jensen v Google
Netherlands. An attempt was made to obtain an injunction to prevent
Google from displaying the search results displayed on a search of the
claimant's name (since there were a number of sex websites). The court
"Google has made it sufficiently clear that it
has no (preventive) involvement with or influence over the contents
of the links to the websites and with or over the contents of the
websites which are automatically obtained as search results after
entering of, in the case in hand, the search term Jensen + Urmia +
Attention was drawn to the "technical,
automatic and passive nature" of the technical processes involved (i.e.
of crawling, index-linking and ranking). Google was not expected to
accept responsibility for the outcome of a search instruction or the
content of the search results. It is to be noted, however, that the
court relied in part upon the lack of knowledge on the part of Google
that the information was wrongful."
You can find the high court
2. The Hamburg declaration
Newspaper publishers have asked the European Commission to
improve the copyright protection afforded to newspaper content. In June European
Publishers' Council (EPC) and the World Association of Newspapers (WAN) gathered
newspaper executives together and signed what they are calling the Hamburg
declaration: "Numerous providers are using the work of authors, publishers
and broadcasters without paying for it. Over the long term, this threatens the
production of high-quality content and the existence of
independent journalism. (Looks like they are blaming Google News and similar
services ...). For this reason, we advocate strongly urgent
improvements in the protection of intellectual property on the Internet (They
don't offer specific proposals)...."
Full text of the declaration
And Google's reaction? See the
official blog post, which pretty much says: Shut up or
use robots.txt ...
Google to newspapers: Put up or shut up (L.A.
Save journalism, online newspaper publishers beg EC
3. Antitrust allegations against
Italy's antitrust watchdog (Autorita Garante della
Concorrenza e del Mercato) is investigating allegations by an Italian
association of news publishers (Federazione
Italiana Editori Giornali (FIEG)) that Google Italy is discriminating against
newspapers that don't want their content linked on Google's news site by also
dropping them from its search engine. The members of the association probably
should have talked to an search engine optimizer first: They probably used
robots.txt to get excluded from Google News. Because search engine spiders,
including the Googlebots, don't distinguish between indexing for news and web
search, that's the reason why the sites of the newspapers automatically also
disappeared from the web search.
Debunking The Italian Newspapers’ Antitrust Allegations Against Google,
4. France: Lawsuits over Google Suggest
Google Suggest makes searches more convenient
and efficient by auto-completing queries as users type them into the search box.
In France, the two companies Direct
Energie and CNFDI
found out, that when people started searching on their company names, the first
suggestion was their company name followed by the word "arnaque," which means "scam."
Google Suggest works by finding the most common searches, so this only means
that most of the people searching for these companies did this in connection
with the word arnaque. Nethertheless both sued Google.
Direct Energie won. The judge in this case
probably did not understand, how Google Suggest works. He complained that the
list offered by Google was neither alphabetically nor sorted accordingly to the
highest number of results. So he ordered Google to change the results!
CNFDI lost. The judge in this case understood
how Google's algorithm works and came to a reasonable decision. He found that
the fact that many people were questioning whether CNFDI was a scam was
potentially useful information, and thus not libelous by itself. Forcing Google
to remove such a suggestion would be too big a burden on free speech.
For more information on these two cases see:
Two Separate Rulings In France Split Over Whether Google's Suggestion Algorithm
Can Be Libelous
5. In short
company is suing Google over its Google Maps offering, because Google lets
companies use its web mapping services for free: "Their strategy is to
capture the market and squeeze out the competition by creating a monopoly
for itself," See:
Google Maps accused of unfair competition in France
The Goddard v. Google case (see
Update 61) finally got
dismissed without leaves to amend,
Goddard v. Google, Inc.,
5:08-cv-02738-JF (N.D. Cal. July 30, 2009).
For details see Goldman, Eric,
Google Not Liable for False Ads--Goddard v. Google,
Technology & Marketing Law Blog
Civil Court No. 75 in Buenos Aires (Juzgado Nacional en lo Civil No. 75)
July 29 held Google and Yahoo! liable for content posted by third parties,
rejecting the search engines' contention that they were mere intermediaries
and therefore not responsible for the actions of pornographic and
female-escort websites that posted pictures of a model and actress without
her consent (Da Cunha v. Yahoo de Argentina, Juzg. N., No. 99620/2006,
7/29/09). See Google,
Yahoo Fined In Argentina Because Searches On Band Name
Leads To Porn Sites, Techdirt
The Court of Justice of the European Communities has announced that the date for
the publication of the Advocate General's Opinion in Cases C-238 to 238/08 Google France and Google Inc. v Louis Vuitton Malletier is to be
Two Google AdWords lawsuits in the U.S. were terminated by request of the
(voluntary dismissal): Jurin v. Google, Inc., 2:09-cv-03934-GHK-E (C.D. Cal.
voluntarily dismissed July 23, 2009) and Ascentive v. Google, Inc.,
2:09-cv-02871 (E.D. Pa.
July 30, 2009)).
For the latest news on the putative nationwide trademark owner class action
lawsuit against Google over AdWords, see: Goldman,
Google Goes on Offensive in AdWords Trademark Lawsuit--Google
v. John Beck Amazing Profits; Google, Inc v. John
Beck Amazing Profits, LLC, C09 03459 (N.D. Cal.
July 27, 2009). And there are more new lawsuits
against Google, brought by Flowbee (see Goldman,
Flowbee Latest Trademark Owner to Sue Google--Flowbee v. Google,
Flowbee International, Inc. v. Google,
Inc., 2:09-cv-00199 (S.D Tex.
complaint filed Aug. 13, 2009) and
Rosetta Stone (Rosetta Stone Ltd. v. Google, Inc.,
1:09-cv-00736-GBL-JFA (E.D. Va.
filed July 10, 2009)
. For more information see: Goldman, Eric,
Ninth Lawsuit Against Google Over AdWords--Rosetta Stone v. Google
Technology & Marketing Law Blog)
New in legal resources
Schubert, Maximilian / Ott, Stephan, AdWords -
Schutz für die Werbefunktion einer Marke, MarkenR 2009, 338-347
Engels, Gabriele, Keyword Advertising - Zwischen beschreibender, unsichtbarer
und missbräuchlicher Verwendung, MarkenR 2009, 289-297
Well-Szönyi, Catherine, AdWords:
Die Kontroverse um die Zulässigkeit der Verwendung fremder Marken als
Schlüsselwort in der französischen Rechtsprechung, GRUR Int. 2009, 557-565
Keyword-Advertising auf dem Weg von Karlsruhe nach Luxemburg, GRUR 2009,
Knaak, Keyword Advertising, GRUR Int.
2009, 551- 557
Hoeren, Thomas, Anmerkung zu BGH – Bananabay, MMR 2009, 328-329
Hoeren, Thomas, Anmerkung zu BGH – Beta-Layout, MMR 2009, 331
Hoeren, Thomas, Anmerkung zu BGH – PCB, MMR 2009, 333-334
Voigt, Paul, Datenschutz bei Google, MMR 2009, 377-382
Elhauge, Einer R.,Why the Google
Books Settlement is Procompetitive(August 26, 2009). Harvard, John M. Olin
Center for Law, Economics, and Business Discussion Paper No. 646. Available
Longdin, L. (2007). Hyperlinking
and copyright infringement. New Zealand Business Law Quarterly,