A Google search is the first port of call for many of us when researching anything online. Indeed, according to Wikipedia, Google receives several hundred million queries each day.

The Google engine searches an index of web pages, compiled and updated by Google automatically, and provides access to the sites that best fit the search criteria inputted by the user. But from time to time those searches can throw up the defamatory material of others, ‘snippets’ from other websites, as a recent case has highlighted. Is the search engine a publisher of that material, or merely a facilitator?

The claim (Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc [2009] EWHC 1765 (QB)) arose over the publication on a website’s discussion forum of an assertion that Metropolitan International Schools Ltd (MIS), a company providing distance-learning courses, was providing products that were, in fact, a fraud and a scam. A Google search on the name of the product brought up a hyperlink to that site and the heading of the discussion thread, ‘Train2Game new SCAM for Scheidegger’ (being the company’s trading names).

MIS notified the website carrying the defamatory thread and Google of its complaint, requiring the material to be removed. When it was not, it issued proceedings for libel in the UK against the website and against Google Inc and Google UK, serving the California-based Google Inc out of the jurisdiction. Google Inc applied to set aside the master’s order to serve out, and for jurisdiction to be declined on various grounds including public policy, abuse of process, non-publication and defences under section 1 of the Defamation Act 1996, innocent dissemination at common law and regulations 17 to 19 of the E-Commerce Regulations 2002. It argued that there was no claim against Google UK, which is merely a sales and marketing business in the UK that does not run the online search engines; that, as Google Inc was a Californian company, the UK was not the most appropriate forum in which the proceedings should be brought; and that no substantial tort had, in any event, been committed within the jurisdiction by Google Inc, as opposed to by the website on which the threads were published.

Historically, defamation law within the jurisdiction of the courts of England and Wales has provided that anyone who contributes to the journey of a libel from the initial source to the ultimate recipient is a publisher of that material and, accordingly, is liable for the publication of that libel. That led to cases where the author of a book, its editor, the commercial publisher, the printer, even the wholesale distributor could be liable, and sued, for a libel in the initial manuscript and ‘published’ by them all. The question posed here was whether Google Inc was similarly liable for the part it played in the journey of the libel. However, at common law the term ‘publisher’ is a wide concept and includes anyone who participated in, secured or authorised the publication of defamatory material. Provided he intended to publish it or failed to take reasonable care to prevent its publication, such party is liable for that publication.Limited protection was provided at common law to those who played only a subordinate role in the publication through the defence of ‘innocent dissemination’. News vendors, libraries and other distributors could escape liability by showing that they did not know that the book or paper in question contained the libel, that they did not know that it was of a character likely to contain a libel and that such want of knowledge was not due to any negligence on their part.

This protection was enhanced by section 1 of the Defamation Act 1996, which provided that those parties with only secondary responsibility – that is who are not the author, editor or (commercial) publisher of a defamatory statement – are not liable where they took reasonable care in relation to the publication and did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement.

While two relatively recent cases – Godfrey v Demon Internet Ltd [2002] QB 201 and Bunt v Tilley [2007] 1 WLR 1243 – had grappled with the issues of liability for internet service providers (ISPs) when it comes to internet search engines, according to Mr Justice Eady: ‘There appears to be no previous English authority dealing with this modern phenomenon.’

In Bunt v Tilley, Eady J himself found that an ISP was not a publisher at common law, providing as it did only a passive medium of communication. As it was involved ‘only as the operator or provider of access to a communications system by means of which the statement is transmitted or made available, by a person over which he has no effective control’ (section 1(3)(c)), it was also afforded the defence under section 1 of the Defamation Act 1996. In Godfrey v Demon, however, as Eady J summarised, ‘the defendant stored information posted by other people, transmitted it to subscribers and had knowledge that the words complained of were defamatory’. However, Mr Justice Morland took the view that ‘it could properly be regarded as a publisher at common law’. But what of Google Inc, neither an ISP nor a website hosting or storing information, but a search engine whose search results, from time to time, include defamatory material? Of particular importance is the fact that the resultant claim ‘is based upon the automatically generated search result’.

As Eady J explained, the index of pages offered as a result of a search on Google are ‘compiled and updated purely automatically (that is, with no human input)… When a search is carried out, it will yield a list of pages which are determined (automatically) as being relevant to the query. The technology ranks the pages in order of "perceived" relevance – again without human intervention’. In those circumstances, the ‘central point’ of the case was whether Google Inc was a publisher at all. ‘The matter is so far undecided in any judicial authority and the statutory wording of the 1996 act does nothing to assist,’ said Eady J. Accordingly, he had to see ‘how the relatively recent concept of a search engine can be made to fit into the traditional legal framework’.

In reaching his conclusion, he confirmed that ‘for a person to be fixed with responsibility for publishing defamatory words, there needs to be present a mental element’. As Eady J himself set out in Bunt v Tilley: ‘If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue… I have little doubt… that to impose legal responsibility upon anyone under the common law for publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility.’

In this case, there was ‘no human input’ from Google Inc. It had ‘no role to play in formulating the search terms’ which brought up the snippet and it could not prevent it from appearing in advance. Accordingly, ‘it cannot be described as a publisher at common law’ and has ‘merely, by the provision of its search service, played the role of a facilitator’.

Despite having found no primary responsibility for the publication by Google Inc, Eady J went on to consider whether, if he were wrong, it would have any defence on which to rely. He found that the common law defence of innocent dissemination had not been abolished by section 1 of the Defamation Act 1996 – despite the ‘formidable argument that no such defence any longer exists’ – but that it would not have assisted Google Inc here given that the defence ‘would almost certainly not be available to a defendant who has had it drawn to his attention that the words are defamatory or, at least, arguably so’.

As for a section 1 defence, Eady J did not have to determine its applicability but said that he found it difficult to see how it would qualify given the need to exercise ‘reasonable care’. How could Google Inc exercise reasonable care ‘in a case where the publication (if that is what it was) took place without any human input?’

Google has been around for just over a decade, but its ambit and importance are now so great that it is difficult to remember a time without it. Indeed, it has become an almost essential part of our daily working lives. In conclusion, Eady J found that it could not ‘be regarded as a publisher of the words complained of, whether before or after notification’. Its non-human search facility may daily direct millions of us to masses of information across the world, some informative, some pure entertainment, some offensive and defamatory. But, for now, Google’s presence online remains safe – it is off the hook.

Amber Melville-Brown, Withers, London