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Does Google the Link Lister Equal Google the Publisher?

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Does Google the Link Lister Equal Google the Publisher?
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Is Google a publisher? Or is Google simply a displayer of links? Are these two things the same?

Those questions are at the heart of a Australian case that just tipped against Google, and are likely at the heart of many cases to come. An Australian high court has found Google liable for libelous content tying a man to organized crime. Of course, Google didn’t create the article that made the references, it simply provided a link to it within its search results.

The man’s name is Milorad Trkulja, and he claimed that Google defamed him by associating his name and image with (untrue) claims of ties to organized crime, both in regular search results and in Google Image search. The jury in the case found Google guilty and therefore responsible for the content that they link to. They’ve been fined $200,000, but are in the process of appealing the ruling (as you would expect).

Is Google responsible for the content that is found using their search engine? Or is this a ridiculous claim to make? Let us know in the comments.

Here’s what the Judge in the case had to say:

The question of whether or not Google Inc was a publisher is a matter of mixed fact and law. In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc’s search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.

Basically, Google may not want to publish it, but they are publishing the publishers. And since Google’s algorithms are tooled to find said content, they are responsible. Or at least it is plausible that a jury could see it that way. The Judge is clearly unconvinced that this stance is set in stone.

The Judge also differentiated search results pages from Google Image searches. The plaintiff also complained of images tying him to crime figures. The Judge notes that a Google Image search is a more-sophisticated version of cut-and-paste from magazines, and importantly a Google-created page:

As was pointed out by counsel for the plaintiff in his address to the jury, the first page of the images matter (containing the photographs I have referred to and each named “Michael Trkulja” and each with a caption “melbournecrime”) was a page not published by any person other than Google Inc. It was a page of Google Inc’s creation – put together as a result of the Google Inc search engine working as it was intended to work by those who wrote the relevant computer programs. It was a cut and paste creation (if somewhat more sophisticated than one involving cutting word or phrases from a newspaper and gluing them onto a piece of paper). If Google Inc’s submission was to be accepted then, while this page might on one view be the natural and probable consequence of the material published on the source page from which it is derived, there would be no actual original publisher of this page.

You can see just how much of a charlie-foxtrot this is. Which pages are Google’s creation, and which are simply the “consequence of the material published on the source page from which it is derived?”

The jury concluded that Google was a publisher, and was liable for the defamatory content even if they weren’t notified of it yet. Although Google contended that it doesn’t matter if they were notified of the content of not – they’re not responsible – the Judge rejected that notion as well.

It follows that, in my view, it was open to the jury to conclude that Google Inc was a publisher – even if it did not have notice of the content of the material about which complaint was made. Google Inc’s submission to the contrary must be rejected. However, Google Inc goes further and asserts that even with notice, it is not capable of being liable as a publisher “because no proper inference about Google Inc adopting or accepting responsibility complained of can ever be drawn from Google Inc’s conduct in operating a search engine”.

This submission must also be rejected. The question is whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances (including the circumstances of this case). Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher.[42] Google Inc’s submission on this issue must be rejected for a number of reasons, the least of which is that it understates the ways in which a person may be held liable as a publisher.

Of course, $200,000 to Google is basically nothing. The appeal really has nothing to do with the monetary damages. Google knows that this kind of decision sets an unsettling precedent for their future defenses in similar cases. Google as “automated news agent that’s responsible for what their algorithms pull out of the depths” is a view of Google that the company can’t afford to have stick.

We’ve seen this story play out numerous times over the past couple of years with Google’s autocomplete feature. In August of 2011, Google lost a case in Italy and was forced to remove autocomplete suggestion in its search box that tied a man to the word “truffatore,” meaning con man. A few month later, Google was fined $65,000 because one of its autocomplete suggestions labeled a French man “esroc,” meaning crook.

And this year, Google made an out-of-court settlement with French anti-discrimination groups over a “Jewish” autocomplete suggestion.

Google’s argument in these cases is similar to the argument in the Australian case. We’re not suggesting anything. We’re not defaming anyone. Google’s autocomplete suggestions are based on popularity of terms. That means that if anything, Google users are the ones linking people’s names with unsavory terms. Google’s search results are also based on an algorithm. Just ask Rick Santorum about how much responsibility Google claims in what people find using its search engine.

So, is Google a publisher? If not, what are they, exactly? How much responsibility do you think Google has for what people find using their search engine? Tell us what you think in the comments.

Does Google the Link Lister Equal Google the Publisher?
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  • Guy

    before panda & penguin I can say what google is not responsible for it. But after that horror animal updates I think what google now is really responsible. Because they claim everywhere what everything for ‘good’ user experience (don’t be scroogled!), they check articles for facts (pure not true lsi – but how they tell the world), etc.
    So at that stage due for promotion of such things – Google is clearly responsible. Also they have a army of indians, let them manually review all search results and analyze it. Anyway google need some hole to spend their billions.

  • Guy

    moral of that story for google is :

    1. if you go play high level – be ready what peoples without technical degree will judge your results, and you will not able to prove them anything.
    2. Tell more about ‘write informative well researched articles for our bots, who know some lsi and it will value your content’.

    Same situation, isn’t it? haha

  • Joons

    Ridiculous – by that same thinking every person who forwards an email and who gets it wrong and we all do it should get sued every day.
    Google is not responsible for the contents of the internet just indexing it and presenting it.
    I hope they win the appeal, if they don’t the whole of search will be compromised

    • Guy

      google is huge web scrapper which automatically create lot of pages based on copyrighted content. If you check google webmaster guidelies you will see what their bots analyze articles (at least they say us like it). So in this case google is responsible – based on google webmasters guidelies and google webmaster blog posts.

  • http://www.positivetourism.com Theo Chambers

    What about the thousands of causes where the jury found someone guilty and years after, DNA proved their innocent. Should all the media houses and journalist who published the guilty verdict be liable for character defamation?

    I strong feel that each person should have a daily google alert for their personal and business name in order to monitor their online reputation and to take pro-active measure to fix any negative comments. Do not try to suppressed the medium that is giving you such a complimentary reputation management tool.

  • http://www.positivetourism.com Theo Chambers

    What about the thousands of cases where the jury found someone guilty and years after, DNA proved their innocent. Should all the media houses and journalist who published the guilty verdict be liable for character defamation?

    I strong feel that each person should have a daily google alert for their personal and business name in order to monitor their online reputation and to take pro-active measure to fix any negative comments. Do not try to suppressed the medium that is giving you such a complimentary reputation management tool.

  • http://christianityetc.org Bob1

    Since Google and other search engines are designed to list and to rank freely published statements in accord with the popularity of their included keywords or keyword phrases, I don’t think that it is possible for any such program to eliminate some possible connections between what an initial publisher wrote that included popular keywords that didn’t imply any “bad” or negative associations and subsequent connections to other publications that he or she would consider to be “bad” or negative or harmful even though they are linked by the same keywords, key phases, or even parts of such specific texts. Seeking to be “popular” is probably not a completely “pure” endeavor.

  • http://theakurians.com Colonel Robert F. Cunningham

    The problem is NOT Google in spite of their massive track-record of perpetual jackass.

    The problem is KAK-ON-THE-BENCH! just like here in the US …

    Colonel Robert F. Cunningham,
    Albuquerque

  • http://www.HGPublishing.com Peter J. Francis

    Google is the self-appointed policeman of the Internet. It has developed algorithms that apparently “understand” the intent of content. It should be able to develop algorithms that understand when content is offensive. It cannot hide behind the claim that it is just repeating what others have said, or what is popular. Just because something is popular doesn’t mean it’s true. Google should also be working toward delivering truth as search results. I’m not smart enough to suggest a solution, but I think Google does bear some responsibility.

  • Tom

    I think it is the backward Australian law of defamation that should be changed!

    The judge said: “…Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.”

    I was intrigued about the “newsagent” mentioned by the judge as I was not sure what he refers to. I found out that in Australian English, a newsagency is the same as a newsstand in American English. So, according to Australian law, the owner of a newsstand (a newsagent down under) is liable for the contents of what is printed in all the newspapers and magazines he sells.

    That is outrageous! Accordingly, the newsagent should read through all newspapers and magazines and research the validity of all claims in articles mentioning the name of companies or people before he puts the newspaper or magazine up for sale in his newsstand!

    The Aussies should get used to getting newspapers and magazines that are 2-3 weeks old, because backlog is the first thing that comes to mind when an idiotic law is putting such a daunting task on somebody selling newspapers!

    I am not a fan of Google, but this idiotic law/ruling sets a precedent that will hurt everybody.

  • http://gaycontentwriter.com Conran

    It’s double standards. Piracy crimes include just listing a link on a website – you can be prosecuted for providing a link to a pirated file, but Google (because they’re a huge giant corporation) can offer millions of those links and not be touched for it.

    If the same rules applied across the board, fairly, they would have to let everyone off or prosecute Google over and over again.

    The next time someone is in court for linking to a pirate file, their defense just needs to point out that Google does this on an industrial scale, and if they cannot be touched for it, neither can anyone else.

  • Mark

    Google is an automated librarian. Artificial intelligence isn’t developed enough to automatically censor a world full of information. Until that becomes our issue, users need to learn to think logically and not surmise truth.

  • http://goldenbil.com/?partner=nvizit Евгений

    Гугл САМЫЙ УМНЫЙ и самый лучший поисковик. Раных ему нет!!!!! Спасибо что есть Google!!!!!!

  • http://www.moroccolol.com/ jhone

    I think it is the backward Australian law of defamation that should be changed!

  • Simon Griffiths

    I’ve just had an experience that was the opposite. An actor client of mine had upset someone and they published a page about him on blogger basically full of lies. Because it was inflammatory it got a lot of clicks and that took it high into the google rankings for his name.

    When I approached Google they were actually very responsive and took the page down in Australia. We are still having a bit of trouble in the UK where he is based, but I have been told they are working on removing it from there too.

    I should add that this was a page just full of insults and unsubstantiated claims from an anonymous source. This type of request definitely shouldn’t be abused to take pages that people just don’t like.

  • http://www.windowsxpslowstartup.how-do-you-do.info Wilf Staton

    What we seem to forget is that Google collects these links, articles and whatever and publishes them on the web. Without Google these would never have been related or shown to searchers on the WEB. So I say Google has a responsibility to determine that these links, images and articles do not give wrong impressions about innocent people and if it does then it is defamatory.

    Sorry Google you are making money out of information you collect and publish for people to read. What this can also mean is that people might go on the bandwagon and start shooting out all sorts of incorrect articles intended to defame. Google coolly collects these and in turn passes on this inflammatory stuff without any determination.

    At least with newspapers they make a decision on an article about people and usually pass it through lawyers before publishing.

  • Andrea

    In my opinion Google is just a search engine. I find this ridiculus.

  • Jon

    Frankly it interests me less whether this particular case holds water or not.

    Google is simply too powerful and too damn big and I welcome any scratch or hole in its seemingly impenetrable surface through cases like this. We have to live with Google until at some point we get choice instead of a monopoly but until then anything that slows down the giant is more than welcome.

    As a Brit I am still steaming that Google is totally avoiding paying any tax on its UK revenue streams by some legal but underhand tax avoidance schemes. They stand proudly infront of the leaders of my country in our parliament and arrogantly slip past the questions forgetting that they are on foreign soil and have made substantial amounts of money out of my country but would rather pay the tax elsewhere. Dont know if the US readership will be particularly interested in this but people outside of the US are pissed at Google – we are frustrated because we need the structure to function economically but we are fed up with yet another over powerful and frankly dishonourable US giant insisting on having the whole damn cake – yes to innovation, yes to technology but no to monoliths like Google. I do hope no US citizen will forget history to rebuke me on this to the tune that non-US folks should be grateful for US technology and therefore not moan – dont forget where most of the technology finds its historic roots!

  • Tag A. Long

    Doing the decent thing, responding to requests to remove libelous material is not so hard.

    Putting myself in the victims shoes I have to conclude that google acted horrribly. I think that jury came to the same conclusion. I’m not sure googles position is defensible at all.

  • http://www.impursuits.com Click —> Here

    That is kind of like the paperboy getting into trouble for delivery the newspaper.

  • Mike

    This is a farce of justice. This is all about seeing dollars and making no sense. If GOOGLE is responsible for the content of every web site that any search links to then is GOOGLE supposed to censor what is searched? and what about that reference to the newsagent. What if a news paper writes a story about a child rapist and right beside, or maybe just near, that story is a picture of a local man riding a bicycle past a school on his way to work? Read the story about the man on his way to work and you find that he was saving on gas so he rode his bicycle every day and that it not only saved him money on gas it improved his health. But no, someone wants to say that a vague random association suggest that there is liable involved. IT IS ALL ABOUT MONEY AND THE LIBERAL IDIOTS IN THIS WORLD ARE ALWAYS LOOKING FOR SOME WAY TO TRY TO ROB PEOPLE OF THEIR EARNINGS SIMPLY BECAUSE THE LIBERAL LEFT IS GREEDY SELFISH AND DON’T GIVE A DAMN ABOUT RIGHT AND WRONG. All the problems of this world would be solved in a second if the liberal idiots would just drop of the face of the Earth.

    • Guy

      but google at webmaster guidelines and at their blog posts claims to recognize facts & content on page. So it show us guilty of google, because they make such claims before.

  • http://stonegraphicdesign.com Ben

    In response to the analogy of Google as a newspaper, I feel like a phone book would be a much better example. If you get ripped off by a company you found in the phone book you don’t go to the BBB about the phone book company. Google is really just a modern extension of a phone book. If something is PROVEN wrong or bad and they are asked to remove it then yes, they probably should, but otherwise it should be on the source legally speaking. Of course i have no great knowledge of law so that is just my 2 cents.

  • http://www.andysheridan.com Andy

    Okay Google’s not responsible for the content, but they do make a lot of money by linking to that content, so they should share some of it with the people they’re helping defame!

    Now to make a webpage defaming myself and get it indexed…

  • Barrie

    In England, libraries that have existed for many years, keep, index and organise books, newspapers, magazines and other documents for the general public and there has never been (to my knowledge) a suggestion that they are responsible for the content of any of these publications. If someone raises concern over an article and no action is taken, then it would seem reasonable that someone within the organization becomes responsible.

  • http://www.posh-golf-travel.com Barry Ward

    What an incongruous decision! It is comparable to suing a librarian because a book on his shelves contains defamatory material. Google is, in effect, a reference library with millions (zillions?) of items on offer.
    Because of the extraordinary volume of references, it seems to me to be impossible for Google to control its reference content by any form of censorship, human or electronically activated. It simply cannot be done.
    This, surely, is the essence of the case? Incidentally, no reference is made to the author of the alleged libel. Was he prosecuted? If not, why not? Was the plaintiff simply taking the easy option or was he unable to identify the author? Or were there other reasons for such inaction? It would be interesting to establish this point.
    Barry

  • http://get-business-online.com/ Gal Baras

    How idiotic. It shows again why the jury system doesn’t work and why the legal system has nothing to do with justice, or reason, for that matter.

    Clever counter-PR, though, for sure. Maybe even cost less than advertising…

  • http://www.NicheWolf.com Dori From NicheWolf

    Google is a Publisher and they are responsible for what they put up on their search engine. If Google hold webmaster responsible , then I think that Google is liable too .

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