As nearly every American lawyer knows, London is the libel capital of the world. There are a bunch of reasons why, of course: defendants have the burden of proving the truth of their statements; neither negligence nor actual malice is required for liability; there's no distinction between public and private figures; etc. But regardless of the reasons, Great Britain is the place to sue for defamation. Heck, it's so bad that it's gotten the lefty ACLU in bed with the neo-con American Center for Democracy! So you know it's serious.
That makes this week's ruling in Britain that Google isn't liable for the content of its users quite noteworthy. Google was sued for defamation by a London-based company called Metropolitan International Schools Ltd ("MIS"), which offers correspondence courses in game design marketed as "Train2Game." If one searches for that term on Google, among the results are forums hosted by digitaltrends.com where Train2Game is called a scam. According to a fairly lengthy write-up of the lawsuit on the site out-law.com (run by Pinsent Masons LLP), MIS was particularly peeved by the phrase "Train2Game new SCAM for Scheidegger" that comes up. (MIS used to be branded Scheidegger MIS.) MIS denied that it was running a scam and argued that this snippet search result was defamatory, and that Google, as the engine producing such a result, was liable for it.
Oddly enough, the British judge didn't buy it. In what appears at first to be a break from the few cases that do exist under British law for web hosts' liability for third-party content, Mr. Justice Eady found that Google was not a publisher of the libelous content and thus could not be held responsible for it. As The Daily Telegraph quotes him:
"When a snippet is thrown up on the user's screen in response to his search, it points him in the direction of an entry somewhere on the web that corresponds, to a greater or lesser extent, to the search terms he has typed in.
“It is for him to access or not, as he chooses. [Google] has merely, by the provision of its search service, played the role of a facilitator.”
He distinguished the prior British case of Godfrey v. Demon Internet Ltd., in which the plaintiff sued the defendant USENet host for defamatory content posted by a user. As quoted by out-law.com:
"A search engine, however, is a different kind of internet intermediary," [Justice Eady] wrote. "It is not possible to draw a complete analogy with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet: there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that [Google Inc.] has authorised or acquiesced in that process."
So naturally, Google is pleased with the outcome, MIS is miffed, and we're left to determine what this result means for the future of liability for third-party content in Britain. From a US perspective, this is obviously the right result. If one did as MIS wanted and held Google liable for every defamatory bit of information that the Google engine churns up on the Internet, Google would shut down pretty fast. It simply would be unable to filter every piece of defamatory or potentially defamatory content, and faced with the onslaught of cases that would result, it would have no choice but to close up shop. (Perhaps that was part of the judge's rationale - if he found Google liable, I daresay that Google, and all other search engines for that matter, would have good reason to leave the UK entirely, thereby crippling British access to the web.)
Does this mean web hosts are now safe from suit in Britain? The Telegraph certainly asserts that, writing:
The ruling will bring the UK more in line with the US legislation on this issue. Section 230 of the US Communications Decency Act makes it clear that intermediaries are not liable for defamation online. However, until now no such ruling existed in the UK, nor has Google ever had to defend itself against this claim before.
That's a pretty ridiculous comparison to make, though. The protection granted by Section 230 of the Communications Decency Act ("Section 230") is robust - it provides effectively complete immunity for an online content host from liability for publishing the content of its users, except with respect to intellectual property claims, federal criminal law, and claims under the Electronic Communications Privacy Act of 1986. The protection that this ruling actually offers is far, far narrower -- it applies only to search engines (yay, says Bing), and leaves Godfrey on the books through a bogus distinction between a web host and a search engine.
Justice Eady seems to think that Google is unable to filter out defamatory content in a way that web hosts can. That's just technical naiveté. If anyone could create such a filter, it's Google. Your average web host is far less able to control third-party content or make a determination about what content is defamatory (Google has good lawyers, but even for them this is difficult) -- their options are either to drastically limit third-party access (thereby chilling online speech) or performing a whack-a-mole censoring of offending content as it appears.
From my (admittedly pro-speech) perspective, this looks like a case of right result, wrong reasoning. Google shouldn't be on the hook for this, but the judge's choice to distinguish, rather than overturn, Godfrey's strict take on online host liability doesn't do online speech any favors. It may be that this ruling is just a stepping stone to a British jurisdiction that is friendlier to online speech -- I've spent the last several weeks studying international media law in London, and if there's one thing I've learned, it's that Britain adopts legal changes very slowly, usually while kicking and screaming. But even if this is the first, cranky step towards a more media-friendly libel law, it's not going to change much right now. Britain is still the place to bring your libel claims against a website host.
(Arthur Bright is a rising third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)