Life is becoming increasingly difficult for search engine operators in Italy. The Court of Rome recently issued a decision that raises serious questions about contributory liability for IP rights infringement (for further details please see "Yahoo! Italia liable for searchable content"). The Court of Milan has since issued another decision on search engine liability, this time with reference to potentially defamatory conduct arising from the use of the Google Suggest service.

Google's 'suggest search' service is a piece of software. When a user types a word into Google's 'search' field, the service suggests other words that are potentially connected to the search term. Its purpose is to help users to identify the most appropriate search results. However, a user noticed that when his name was typed into Google's 'search' field, the software suggested the words 'fraud' and 'fraudster'.

The user alleged that the 'suggest search' results were defamatory. He asked the Court of Milan to order Google to edit its software to remove the association between his name and the terms 'fraud' and 'fraudster'. The first instance court held that the user's allegations were well founded and issued an interim injunction ordering Google to remove the results in question.

Google challenged the decision. The appellate court held that:

  • Google's 'suggest search' software is purely automatic - it is based on the most frequent searches by users;
  • in providing this service, Google is a hosting provider for the purposes of the EU E-commerce Directive (2000/31/EC) and is therefore obliged to remove unlawful content if a court orders it to do so - in Yahoo! Italia the Court of Rome identified search engines as caching providers;
  • the association between the claimant's name and the words at issue was derived from the use of Google software, which was aimed at optimising access to Google search results; and
  • Google was liable for the potential negative consequences of the use of such software on the basis of its decision to employ the Google 'suggest search' software and the mechanisms by which it functions.

The court stated that:

"the software is only apparently 'neutral', due to the fact that it is based on an automatic system of mathematic algorithms; it loses its neutrality when, as a result of the application of such automatic mechanism based on criteria selected by its creator, it generates inappropriate search results."

The court held that Google was not required to undertake preventive monitoring of inappropriate results, but was obliged to correct inappropriate results when challenged by users. However, the inappropriate results in themselves led to potential defamation.

The decision is significant because it makes reference to Google as a hosting provider in its provision of a 'suggest search' service; however, this analysis is arguably wrong. Despite the finding in respect of preventive monitoring, Google may ultimately find itself obliged to monitor its 'suggest search' results, which would effectively force the company to abandon this service.

For further information on this topic please contact Giulio Coraggio at DLA Piper Italy by telephone (+39 02 80 61 81), fax (+39 02 80 61 82 01) or email ([email protected]).