Tuesday, February 8, 2011

Google not liable for defamatory material in search results

In a recent decision of the English High Court in Metropolitan International Schools Ltd v DesignTechnica Corporation ["Metropolitan International"] (see: case), Justice Eady held that Google, the popular search engine, was not liable for defamatory material that appeared in its search results. More generally, Metropolitan International supports a common law principle that a person cannot be liable for conveying defamatory material to users if the conveyance lacks human intervention.

The claim against Google was brought by Metropolitan International Schools ["Metropolitan"], a company that offers distance learning courses. The litigation arose after an anonymous person posted a message on a website suggesting that Metropolitan’s distance learning courses were a “scam”. To make matters worse, the message began ranking highly in Google search results for searches conducted for Metropolitan. Metropolitan reacted by suing the website operator and Google for publishing the defamatory comments in its search results.

The issue of interest in this case was whether Google was a “publisher” of the defamatory material and thereby liable to Metropolitan. The court began by drawing an interesting distinction between a human compiler of a library catalogue and the automated indexing process employed by Google. The later could not be a “publisher” – Justice Eady concluded – because the search results were generated automatically and without human involvement. Accordingly, Google lacked the requisite knowledge and involvement sufficient to constitute publication [at para. 50 and 53]:

When a search is carried out by a web user via the Google search engine it is clear, from what I have said already about its function, that there is no human input from [Google]. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programmes.

[W]hereas a compiler of a conventional library catalogue will consciously at some point have chosen the wording of any “snippet” or summary included, that is not so in the case of a search engine. There will have been no intervention on the part of any human agent. It has all been done by the web-crawling “robots”.

The court was careful to note that Google, although not liable as a publisher, might be liable on the basis of acquiescence if it permitted the publication to appear in its search results despite having the power to prevent it. On a survey of the facts, the court concluded that Google had acted to restrict access to the message and was thereby not liable on the basis of acquiescence.

This judgment  has interesting implications for website operators that exercise human intervention in the process of conveying information to users. The court’s distinction between processes which involve human intervention and those which consist of automated processes suggest that online entities might decrease their legal exposure by automating processes that involve the conveyance of information to users. One may question whether this “incentive to automate” might result in an increase in incidences of internet defamation accompanied by a decrease in the precision and relevance of information conveyed to users.

Saturday, January 29, 2011

What is Secondary Publishers?

One of the three requirements for a defendant to be liable for defamation, he must be a publisher of the defamatory statement. The definition of publisher at common law includes anyone who participated in the publication of a defamatory statement. This is very wide, encompassing both primary and secondary publishers.

A primary publisher of defamatory material is one who exercises direct editorial control over the published statements, as defined, for example include authors, editors and publishing houses.

Secondary publishers do not take an active editorial role but still make the defamatory comments available to third parties. Examples of activities which can be undertaken without making the person a primary publisher include libraries, news-stands, bookshops and ISPs. Secondary publishers can still be liable for defamatory material communicated to a third party, even in the absence of proof of fault.

The distinction between primary and secondary publishers is of particular importance in relation to the internet. In many cases, the originator of a defamatory statement cannot always be identified and is rarely worth suing. It may therefore be necessary to pursue a secondary publisher. Where a defamatory statement is made on a company website, for example, the claimant has a choice of who to sue. He could choose the owner of the website, as the primary publisher, or pursue the operator of the website, the ISP, as a secondary publisher.

The lack of protection given to secondary publishers means that, in practice, ISPs are often the first target of claimants wishing to remove a defamatory statement from the internet. The distinction between primary and secondary publishers can become blurred in internet cases. For example, a company providing an online news service may be a secondary publisher if all it does is collect news articles and print them in the same form on the internet.

However, if the company decides to exert some form of editorial control by editing the articles or providing summary extracts, it may become a primary publisher. This can cause considerable difficulties for ISPs.

There is also doubt as to whether search engines or providers of hypertext links are publishers.

In Lindley v. Delman 25 P. 2d 751 (1933) the showing of a libellous letter and issuance of a request to others to visit a place where the libellous statements could be viewed was held to constitute a publication under the definition of defamation.

In Lawrence v. Newberry (1891), 64 L.T. 797 a letter to a newspaper referring to a speech containing defamatory content which was published elsewhere attracted liability to the defendant.

Similarly, in Hird v. Wood (1894), 38 S.J. 234 (CA) the defendant was merely sitting beside a placard containing defamatory remarks and drew the attention of others to it which resulted in a finding of liability. While these cases are significant in age, they serve to stand for the proposition that simply directing others to defamatory materials may also result in publication liability. Therefore, hyperlinks - upon which the Internet is built - from one HTML document to another could attract liability.

However, as noted by Takach, in the U.S. case MacFadden v. Anthony, 117 N.Y.S. 2d 520(Sup. Ct. N.Y. 1952), no responsibility was given to a radio commentator who made an on-air reference to a libellous magazine article. The court concluded that the commentator did not repeat the libel verbatim or in substance, and the words which were actually broadcast were themselves not libellous.

By analogy, the same principle could apply to the provider of a hypertext link. However, much may depend on the facts. For instance, if the link is to a site as a whole, as opposed to a particular article on it, there is a stronger argument that no act of publication takes place.

A similar uncertainty applies to search engines. Although a search engine is a publisher of the page headings and short extracts, it is less certain whether it is a publisher of material on the linked sites themselves.

Google to retain ‘offensive’ contents on fish head curry outlet

Seems Google is ready to defend against the action. I suppose it’s high time that the outdated law of defamation must be revamp to suit modern technology, society and time. People who is not the author, editor or publisher of the statement complained of should not be held liable, especially on the World Wide Web of the internet. I don’t know how these people (like Google) would have known of such defamatory statement.

Google strongly believe in freedom of expression and it would be contradicting if they go against their policies. Read here. I take my hate off to Google.

This article was taken from STAR here

KOTA KINABALU: Search engine giant Google has said that it cannot remove Internet contents deemed offensive to a fish head curry restaurant here.

A company spokesman said in a statement that Google’s policy does not allow it to remove contents provided through its searches except for illegal matters such as child pornography among others.

Furthermore, the search results Google provided to users reflected the contents available on the Internet, the spokesman added.

“In these cases or in cases where we are compelled by local or international law to remove content, we make these actions transparent using public, third party sites such as ChillingEffects.com,” the official added.

On Monday, the director of a fish head curry restaurant that is recommended by Lonely Planet, sued a blogger and Google for defamation.

Jothys Sdn Bhd director Tharumaraj Sivaperumal filed a RM6mil civil suit at the Kota Kinabalu High Court.

He named blogger Poh Huai Bin as the first defendant and California-based Google Inc as the second defendant.

The suit was over allegedly defamatory statements made about Jothys Fish Head Curry Restaurant here which was posted in May last year by Poh, who is originally from Sibu, Sarawak and who now resides in Kuala Lumpur.

The company, which is represented by counsel Marcel Jude Joseph, is seeking exemplary or punitive damages and an order to restrain Poh from defaming the restaurant on the Internet.

The company is also seeking an order from the court to remove the offending articles from Google and other popular search engines used on the Internet.

Tharumaraj said he felt very let down when the blogger demeaned his fish head curry and banana leaf restaurant and urged the people to “avoid it like a bad case of herpes.”

He added that if one used Yahoo or other search engines, the offending blog does not appear immediately but in Google, it would show up first.

Friday, January 28, 2011

Company can sue for defamation

This article was recently published by STAR which clearly states that Company has the right to sue for defamation. Do you agree?

Companies and corporate bodies can be defamed, just like individuals, because the law of libel is the same for all plaintiffs.

ONE often hears and reads about individuals – whether prominent personalities or ordinary citizens – who bring an action for defamation because of perceived damage to reputation. Defamation comprises libel and slander. The former refers to defamation in a permanent form, while the latter refers to defamation in a transient form.

Of course, well-known personalities naturally feel offended and hurt about statements that disparage them. But lesser known people are also sensitive to such statements. In fact, a private person has more reason to feel aggrieved because it is an unwarranted intrusion into his life.

However, though it is usually individuals who feel hurt over derogatory statements, it is sometimes a company that complains. As a reader points out, a company being an artificially created person in law, cannot have feelings and should therefore not be entitled to sue. But companies have rights, too.

Case in point

Such a situation arose in the case of Jameel (Mohammed) vs Wall Street Journal Europe Sprl. The gist of the article stated that the Saudi Arabian Monetary Authority was, at the request of the United States law enforcement agencies, monitoring bank accounts associated with some of the country’s most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for funnelling funds to terrorist organisations.

In the article headlined: “Saudi officials monitoring certain bank accounts” accompanied by the sub-heading, “Focus is on those with potential terrorist ties”, a number of companies and individuals were named, among them “the Abdullatif Jamil group of companies”. It later turned out that the information that was received from reliable but undisclosed sources was not correct, at least in relation to reference to one of the plaintiffs.

Basically libel has always been viewed as a wrong for which action can be taken without having actual damage proven. All that needs to be proven is that there has been published a false statement damaging to a person’s reputation without lawful justification.

But as a company is an artificial entity, albeit a legal one and is therefore incapable of any feelings, can it be defamed? It was argued in South Hetton Coal Co Ltd vs North-Eastern News Association Ltd more than a hundred years ago that this rule did not apply to trading companies.

The newspaper in that case had published an article strongly critical of the way in which the plaintiff, a colliery owner, housed its workers, and the company had not pleaded or proven any actual damage.

It was argued for the publisher that a corporation could have no personal character, and that the article had not related to the business of the company. The Court of Appeal rejected the argument. Lord Esher MR held the law of libel to be one and the same for all plaintiffs. While he referred to obvious differences between individuals and companies, his lordship reiterated that a company was capable of being defamed just like an ordinary individual.

No feelings

It is, of course, the case that a company itself certainly does not have any feelings nor is it capable of being embarrassed. It cannot therefore be said to experience the feeling of hurt by what is published even though defamatory. Such a view is sometimes relied upon by what was said in Lewis vs Daily Telegraph Ltd, where Lord Reid pointed out that a company cannot be injured in its feelings but only in its pocket.

However, the fact remains that damage to reputation being the essence of the matter, corporate bodies are capable of being defamed if their reputation is damaged. As was said by Lord Bingham of Cornhill in Jameel (Mohammed) vs Wall Street Journal Europe Sprl, a company may maintain an action for a libel reflecting on the management of its business without causing or proving special damage.

Attempts have, however, been made over the years to limit the right of companies to sue for defamation or at least to limit the scope for doing so. The Faulks Committee on Defama­tion, in its report in 1975, recommended amendments in this regard. However, these were not amendments to which Parlia­ment in England chose to give effect.

Otherwise questions also arise where the party suing is not a trade organisation but a local authority or a trade union. Such a case arose in National Union of General and Handicraft Workers vs Gillan, and the subject was addressed in the judgment of Lord Keith of Kinkel in the following words: “The authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business.

“The South Hetton Coal Co case would appear to be an instance of the latter kind, and not an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business.

“The trade union cases are understandable upon the view that defamatory matters may adversely affect the union’s ability to keep its members or attract new ones or to maintain a convincing attitude towards employers.

“Likewise in the case of a charitable organisation, the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions.”


The authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. The feeling of hurt which may be felt by the individual is not after all an ingredient of the wrong of libel.

The element of hurt may have a role in propelling an individual to act. The gravity of the hurt may be a factor to consider when assessing the damages but that is only after liability has been established.

Google and blogger sued by curry fish head restaurant

This is another defamation case regarding a food critic blogger who was sued by a restaurant because he published some words in his blog which the restaurant owner claimed had damaged and tarnished his business reputation. You can read the full story which was published by STAR here.

The owner of the restaurant Mr. Tharumaraj Sivaperumal alleged that his fish head curry restaurant (which he claimed to be very popular among his customers) had suffered extreme financial losses because of the alleged defamatory article and the restaurant is now seeking 6 million ringgit for damages and an interim injunction.

The objective of defamation laws is to balance protection of individual or business reputation with freedom of expression. In practice, defamation laws are frequently used as a means of chilling speech. A threat of costly defamation proceedings and damages, whether or not a plaintiff's claim is likely to be upheld by a court, is often used to silence criticism.

I think the publisher should consult an excellent lawyer who is an expert in defamation law and cases to defend him and believe me, it will cost him a bundle. It will also take a very long time to see the end of a defamation suit, if it eventually goes to trial. Frankly, if you do not have the extra cash or means, forget about legal aid because legal aid is not provided for defamation cases.

Sometime in defamation cases it is best for the defendant to represent himself in person. There are some advantage for doing so only if you got nothing to lose and you are a determined and diligent person to go all out to fight for your rights. If people in Malaysia has the determination and courage like Helen Steel and David Morris in the McDonald's Restaurants v Morris & Steel case, most organisations in Malaysia will think twice to raise a defamation suit. Even though Helen Steel and David Morris lost the case but they won with the support of the people in Europe and they made history.  

I believe organisations (especially those who produce and sell food) should not have the right to maintain an action for damages for defamation like individuals. As a consumer and you believe in consumer rights and the power of people let’s create a better Malaysia.

I will try to raise another topic on this matter and write more on other similar cases.