Doing business in..: Internet search engines are not "publishers"

However, here, too, the Judge appears to have misdirected himself: Google does in fact store the results - its cache service enables the most recently scanned version of a page to be viewed even if the original page is no longer available. Moreover, it processes information in that pdf files can be viewed as html. This is not, this author would submit, "the role of a passive medium of communication." In the instant case, there was no such conversion. The Judge appears not to have considered whether a search engine can take down material which is, or may be, defamatory.Google argued via counsel a point that the Judge summarised as follows: "The Third Defendant is not, and could not be, in a position to check the truth or accuracy of the vast amount of information crawled over by its automated search engine."This author would summarise that argument thus: "search engines are too big to discriminate."The contrary argument would be that the rights of the plaintiff should not be over-ridden simply by the fact that someone has decided that to protect his rights is too difficult or too expensive under their business model."But the argument is not valid, in this author's submission. Google already edits its content, particularly for pornography and, in certain jurisdictions, for comment that may cause offence to the incumbent government. It is here argued that Google's claims that to restrict its content would be a restriction on free speech is somewhat hollow given its admitted censorship of content in China.The point is also important for those who wish to protect their intellectual property: Google takes it as its right to republish and cache both content and images unless it is expressly told to the contrary by the use of blocking technologies, therefore reversing the usual burden for ensuring that there is no breach of copyright and placing it on the copyright holder.Also, Google is a direct participant in the success of many pages through its advertising.The Judge specifically made reference to s.230 of the Federal Communications Decency Act, 47 United States Congress. He said that s230 of that Act is "to the effect that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". None of this, however, directly impinges on the decisions I have to make." His decision seems remarkably close to that position.The decision is not a positive decision for the vast majority of internet users: it is a win for a corporate business model and undermines the rights of individuals and companies, placing the burden on them to identify breaches and to take action - and then to accept the decisions of the search engine company, along with such delays as they may invoke.It is here argued that the decision fundamentally fails to address the basic principle that a person's reputation is sacrosanct and that all comers have a duty to be cautious before being involved in a process that may harm that reputation.Saying "it's too difficult" is not the solution. If it was, then it would be acceptable for any company to argue that it could do as it liked because to do otherwise would undermine its business model.In this author's submission, the Judge failed to look at the fundamentals of the issues before him.Nigel Morris-Cotterill is Head, The Anti Money Laundering Network and Publisher of ChiefOfficers.Net and other Group publications. He was a solicitor in private practice in the City of London before leaving professional practice for the world of commerce.

The full judgment is at http://www.bailii.org/ew/cases/EWHC/QB/2009/1765.html