Google cache and libel

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I have been pon­der­ing fur­ther about Google’s cache and defam­a­tion. Here’s the deal: Google is auto­mat­ic­ally index­ing, copy­ing and stor­ing mater­ial in its cache.

By allow­ing Google to find your site, and not using the NoArchive meta-tag, you are also giv­ing search engines implied con­sent to index your site, and index it in such a way that repro­duces the whole content.

The UK 1996 Defam­a­tion Act is pretty ambigu­ous. Google would appear to be off the hook here:

1(3) A per­son shall not be con­sidered the author, editor or pub­lisher of a state­ment if he is only involved … -

© in pro­cessing, mak­ing cop­ies of, dis­trib­ut­ing or selling any elec­tronic medium in or on which the state­ment is recor­ded, or in oper­at­ing or provid­ing any equip­ment, sys­tem or ser­vice by means of which the state­ment is retrieved, copied, dis­trib­uted or made avail­able in elec­tronic form.

In respect of UK defam­a­tion law, Google would argue that it is only mak­ing cop­ies of and dis­trib­ut­ing mater­ial that con­tains a defam­at­ory state­ment and is there­fore not the publisher.

But then the act also defines “pub­lisher” as:

a com­mer­cial pub­lisher, that is, a per­son whose busi­ness is issu­ing mater­ial to the pub­lic, or a sec­tion of the pub­lic, who issues mater­ial con­tain­ing the state­ment in the course of that business.

Google would be “pub­lish­ing” defam­at­ory mater­ial held in its cache, since it is mak­ing the mater­ial avail­able via ad-served search pages.

You can ask for Google to remove pages from the cache. But does this con­sti­tute what the legis­la­tion calls “reas­on­able care in rela­tion to its pub­lic­a­tion”? Is an auto­mated pro­cess exer­cising “reas­on­able care”?

Per­haps the fact that no case has yet come to light means this isn’t an issue we should worry about. Or per­haps more people should ensure that their mater­ial doesn’t end up in the cache.

4 thoughts on “Google cache and libel”

  1. Another inter­est­ing take on the issue, Adrian.

    I’m some­where in the middle, I sup­pose, but the primary respons­ib­il­ity with keep­ing some­thing unwanted con­tent off the net should lie with the author that puts it on the net in the first instance. Google may take it off its cache, but there are loads of other inter­net archives — many of which would take the view that the archive needs to be a per­fect archive and not sub­ject to later manip­u­la­tion by inter­ested parties. (How many politi­cians would like to take their cam­paign prom­ises off the inter­net at some later date? 1984: Boris never prom­ised to elim­in­ate the Bendy Bus — Boris always loved the Bendy Bus)

    As to whether Google can be con­strued to be a pub­lisher … I think we need to be care­ful how we stretch legal defin­i­tions. Google in most respects acts in the man­ner of a lib­rary (albeit a for-profit and much lar­ger lib­rary) — I think they organ­ise already-issued things rather than ‘issue’ them. (think about it: Google can­not index a novel that has yet to be pub­lished and made avail­able on Amazon or Water­stones; Google can­not index a photo that has not oth­er­wise been loaded on to the inter­net). Any liab­il­ity that Google would face would be sim­il­arly faced by lib­rar­ies. How many lib­rar­ies would then stock con­tro­ver­sial books and pub­lic­a­tions if they felt they might be respons­ible for libel? Do we really want that out­come? That’s the one great thing about Google — it’s content-neutral in many ways and its cov­er­age is fairly global.

    I think in the case of Ruth (who has a great blog, BTW), she works for a pub­lic­a­tion that issues news, sports and opin­ion. Her opin­ion was issued by the news­pa­per on its web­site — a web­site that encour­ages wide dis­sem­in­a­tion of its con­tent by SEO and RSS, etc. So, this is not the case of private con­tent that was long-lensed or door-stepped or stolen out of someone’s post. It was pur­posely put into the pub­lic by the author and her employer. Let’s always keep that con­text in mind.

    Any­way, I’m sure the debate will con­tinue. I would also expect Google to lose the occa­sional legal battle as it seeks to find that bal­ance between organ­ising the world’s con­tent (or whatever it says its mis­sion is) and tra­di­tional notions of pub­lish­ing, pri­vacy, etc.

    Russ

    Reply ↓

  2. Thanks Russ, Re: authors and respons­ib­il­ity cf the NY Times story today on the rather more hot-button issue of child por­no­graphy:

    “The I.S.P.s’ point had been, ‘We’re not respons­ible, these are indi­vidu­als com­mu­nic­at­ing with indi­vidu­als, we’re not respons­ible,’ ” he said, refer­ring to Inter­net ser­vice pro­viders. “Our point was that at some point, you do bear respons­ib­il­ity.”
    Reply ↓

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