The Right to be Forgotten has been in the news again recently following the decision in NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), but Google will often voluntarily remove content from its search engine results on a variety of other grounds, including that the content is defamatory.
Under English law, in the now relatively historic decision in Metropolitan International Schools Ltd v Designtechnica Corp and Google [2009] EWHC 1765 (QB) , it was held that search engine operators could not be liable for publishing defamatory content. Google was described by Eady J as a “mere facilitator”. The law has developed differently in some other jurisdictions (such as Australia) and many practitioners think Metropolitan Schools is vulnerable law. The decision does not sit comfortably with subsequent findings by the Court of Appeal in Tamiz v Google Inc [2013] EWCA Civ 68 (where this firm acted for either the Claimant) that an intermediary/platform can be deemed a publisher after notice or the CJEU’s in Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12) that Google is a data controller for the purposes of data protection law. Perhaps equally significantly, times have changed and (much like other online giants) Google is no longer universally seen as something so important, unique and special that it warrants its own set of legal principles.
Notwithstanding the legal position, Google has been operating a voluntary take-down system for defamation-based complaints for many years. Contrary to what many people believe, you do not need to have a Court Order to make one of these requests (there is a separate option for those with an order declaring content unlawful). Unlike ‘Right to be Forgotten’ requests, Google’s form for ‘other legal removal issues’, including defamation, has no function by which documents can be uploaded. This means that submitting lengthy Letters of Claim by this method is impractical. However, in our experience, brevity is often to the complainant’s advantage when making these requests. Unlike Right to be Forgotten requests, where as Warby J noted in NT1 & NT2, Google is clearly trying to get the law right (albeit, only as hard, it would seem, as it considers commercially reasonable), and there are a wide range of factors for it to consider, defamation complaints appear to receive a rather more broad-brush approach (and perhaps rightly so, given that Google arguably has no liability). We find that these complaints are more likely to result in delisting where one can point to content that is very obviously defamatory on its face, such as allegations of fraud, corruption, and criminality. These are often the very types of content which are extremely unlikely to succeed upon Right to be Forgotten requests. Equally, defamation take-down requests can be made on behalf of companies, for whom the Right to be Forgotten does not apply. It is not necessary to ‘prove’ serious harm to reputation, nor indeed likelihood of serious financial loss (as required by sections 1(1) and 1(2) of the Defamation Act 2013 respectively) when making take-down requests. That these thresholds are met may simply be asserted (assuming they are true). It is a matter for Google whether it agrees or not. Similarly, there is nothing to prevent people making defamation take-down requests to Google over content which is prima facie outside limitation: limitation is a defence to be raised by defendants. Whilst the results of defamation take-down requests to Google tend to be very hit and miss (one good result does not predict another), the costs of instructing solicitors to make them tend to be relatively low in general terms. For all these reasons, this is a powerful tool in the media lawyer’s toolbox.
Of course, there is nothing to prevent individuals from submitting these complaints to Google themselves, but for those who can afford to seek legal assistance, there is really no substitute for the experience of having submitted hundreds of such requests, and knowing what buttons to press, or not to press, in light of the particular facts.
Delisting for defamation take-downs is limited to the country of origin (e.g. the UK). The links will be still be available elsewhere, so they are of limited value to people or businesses which genuinely have a reputation across borders, but many will still see them as far better than nothing. The only real downside to such requests, is “Lumen Notices”. As Google forewarns when submitting take-down requests, ‘a copy of each legal notice we receive may be sent to the Lumen project for publication and annotation’. The Lumen project, or Lumen Database (formerly known as ‘Chilling Effects’) is a free-speech organisation run out of San Francisco. Essentially, it stores and indexes take-down notices, primarily for copyright complaints, but also for other causes of action. What this means for the Google defamation request is that you will be likely to end up with a notice like this at the foot of the page of the results from which the content was removed: –
In response to a legal request submitted to Google, we have removed 5 result(s) from this page. If you wish, you may read more about the request at LumenDatabase.org.
The ‘read more about the request’ part will be hyperlinked to the Lumen site where they will reproduce the take-down notice (albeit normally with parts redacted) and (significantly) list the URLs that Google has delisted. Naturally, many casual Internet users will not pick up on this notice or if they do, they will not then bother to find the hyperlink to the defamatory content. And even if they do that, the subject of the defamatory content will at least be able to point out that they took legal action and the content has been reduced to a Lumen notice precisely because it was defamatory. So, for most people, this will be far the lesser of the two evils. For others, who may be concerned about their search results in the context of more professional due diligence, this can somewhat undermine the result of the take-down. This is an issue which has been raging in the copyright world for considerable time. It raises the vexing issue of hyperlinking to illegal content, something which both civil and criminal courts around the globe have been wrestling with – rather haphazardly – for years.