adrian monck

Google cache and libel

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 … –

(c) 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.

Adrian Monck

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4 responses to “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

  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.”