In the case of Metropolitan International Schools Limited (t/a Train2Game) v (1) Designtechnica Corporation (t/a Digital Trends) (2) Google UK Limited (3) Google Inc, the High Court has ruled on the extent to which Google could be regarded as a ‘publisher’ for the purposes of a defamation action.
Train2Game ran distance learning courses for adults in the design and development of computer games. Until 2004, it had traded under the name ‘Scheidegger’. Designtechnica hosted a website at digitaltrends.com on which anyone could post reviews of products and services. The dispute centred around a discussion thread on this website begun on the 25 March 2009 by a user with the username richardW under the title ‘Train2Game new SCAM for Scheidegger’. The discussion grew to 146 postings, the essence of which was that the courses run by Train2Game were poor quality and overpriced. Train2Game issued defamation proceedings against Designtechnica in respect of these postings on its site. It also commenced proceedings against Google claiming that it was a publisher of the defamatory postings. The court accepted Google UK’s evidence that it was Google Inc that operated the search engine at google.co.uk. and so Google UK dropped out of the picture. The claim against Google Inc centred on the fact that, since 25 March 2009, if Train2Game was entered as a search term into Google’s search engine the phrase 'Train2Game new SCAM for Scheidegger' would appear in the third or fourth ranked search result. The question for the High Court was whether this amounted to publication for the purposes of a defamation claim.
The High Court held that Google Inc was not a publisher. It accepted the evidence that the Google search engine was entirely automated with no human input involved and that Google had no control over the search terms entered by users. A publisher for the purposes of a defamation claim had to have some knowing involvement in the publication of the words complained of. It was not enough that they played a merely passive instrumental role in the dissemination of the words. Google did not have the required ‘mental element’ to be a publisher. It could not sensibly be said that it had authorised or caused the words to appear on the user’s screen. Google merely facilitated the dissemination and that was not enough.
Google’s liability did not change once it had been informed by Train2Game that defamatory statements were appearing in its search results. Google was very different from a website owner which would be liable for defamatory content on its site once it had been told about it. An owner had the power to take down material from its site relatively easily. Google had no means of ‘taking down’ material appearing in its search results. If Google blocked the words complained of, that would have the effect of blocking other lawful material that might contain some of the same words. This would have implications under Article 10 ECHR.
The High Court stressed that Train2Game’s remedy in this situation was against Designtechnica and not against Google.
This decision is an important one in the sense that there was no previous judicial authority specifically concerning the liability of search engines for defamatory content appearing in search results. In a wider commercial context, the decision is useful in emphasising that an individual or organisation looking to protect its online reputation should take action against a website owner or host under the Godfrey v Demon principles.