The internet has revolutionised the way in which media is provided and accessed worldwide. Publications of various kinds are accessible from almost anywhere, and search engines provide a means to easily find and access the information we want most. At the fore of these is Google, an internet giant whose name has become almost synonymous with “online search”.
Google search in a nutshell
The Google search engine has been refined over the years to become the fastest, potentially most accurate, and undeniably most widely used online search engine. The technological process for a Google search is relatively complex but can be summarised as follows.
Each search inquiry is submitted to hundreds of Google server machines, which simultaneously consult a range of cached data from Google’s index (consisting of billions of web pages). The machines then return the best matching content to the searcher in the form of links to websites and “snippets” of information from each corresponding website. The caching and matching of data is governed by complex algorithms that work automatically in order to return your search result in a fraction of a second.
But, if Google displays snippets of websites’ content, are the results of the search considered a “publication”? And if so, can search engines, as “publishers”, be held liable for the content of the search results?
Liability for defamation
These questions were raised in defamation proceedings in the recent case of A v Google New Zealand Limited HC Auckland, CIV 2011-404-002789, 12 September 2012.
The plaintiff (A) is a psychiatrist who sought to sue Google for defamatory statements contained within its search result snippets. The snippets, comprised of information published on a United States website, were revealed upon searching for A’s name in Google. Although Google had removed the snippets on A’s request, they continued to appear each time the US website changed and was re-added to Google’s index.
A then brought proceedings, claiming that Google NZ had defamed him by publishing the content in its search results. Google NZ sought to strike out the claim on the basis that the true defendant in any such proceedings should be the parent company, and owner and operator of the search engine, Google Inc. Google NZ also argued that it was not a “publisher” (for example, because its search process is automatic), or that if it was a publisher, its search result snippets were merely innocent dissemination or neutral reportage.
While Google succeeded in applying to strike out A’s claims on the basis that it was the incorrect defendant, Associate Judge Abbott left open the possibility “to hold that a search engine is a publisher but with access to the defence of innocent dissemination”. Part of that determination may involve asking whether the automatic search result process contains a “stamp of human intervention”.
A finding against Google could potentially open search engines up to other forms of liability. For example, if search results provide a link to pirated material, would displaying this content be considered copyright infringement by the search engine? Findings of this nature could seriously compromise the way in which search engines such as Google operate, and potentially stifle our unfettered access to information online.
Should Google be worried? Will the average Googler be affected?