Could ‘suggested’ search terms, which have been further developed for Google Instant, be viewed as online publication by a judge?
If so, the steps below would give a quick recipe for finding defamatory statements or Contempt of Court breaches:
- Pick one famous celebrity, who is the centre of online gossip or is known to have taken out an injunction
- Google their name
- As you type their name, said rumours will be begin to appear as ‘suggested’ search terms, with related articles appearing in the results.
(NB: Google Instant results can be turned off, but Google suggested search terms or ‘auto-complete’ cannot).
There’s also the matter of ‘back-end search’. Bloggers will be aware that they can view the searches that bring readers to their sites, via their blogs’ administration control panels. Are those ‘publications’?
In the High Court in July 2009, Justice Eady ruled that Google, as a facilitator, was not liable for defamatory search ‘snippets’ that reproduce information from other sites. He acknowledged the lack of guidance in this area, as Out-Law.com reported:
“There appears to be no previous English authority dealing with this modern phenomenon,” wrote Mr Justice Eady. “Indeed, it is surprising how little authority there is within this jurisdiction applying the common law of publication or its modern statutory refinements to Internet communications.”
- Judgment on Bailli: Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) & Ors  EWHC 1765 (QB) (16 July 2009)
But there’s a difference between search ‘snippets’ and the example of Google auto-complete; with the latter it is Google that provides the suggestion text (via its users).
I’ll be looking into this further and asking lawyers what they think, but in the meantime, any (legally safe) comments would be welcomed.
(Hat-tip for the idea: @amonck on Twitter)