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.