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Update 65: September 1, 2009

1. Search engine liability in the UK and elsewhere

According to a high court judge in London, Google is not the publisher of defamatory comments that appear in its search results.

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 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 observed that:

"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 + Brigitte."

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 decision here!


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 ...

Also see: Google to newspapers: Put up or shut up (L.A. Times) and Save journalism, online newspaper publishers beg EC (The Register)


3. Antitrust allegations against Google Italy

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.

See: Debunking The Italian Newspapers’ Antitrust Allegations Against Google, Searchengineland


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:  Techdirt, Two Separate Rulings In France Split Over Whether Google's Suggestion Algorithm Can Be Libelous

5. In short


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

  • Ohly, Ansgar, Keyword-Advertising auf dem Weg von Karlsruhe nach Luxemburg, GRUR 2009, 709-717

  • 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 at SSRN:

  • Longdin, L. (2007). Hyperlinking and copyright infringement. New Zealand Business Law Quarterly, 13, 33-46





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