Google Liable for Suggest Search Results

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Life is getting harder and harder in Italy for search engines. After the recent dispute involving Yahoo!, the court of Milan has now issued another interesting decision on the liability of search engines with particular reference to a potential defamatory conduct arising through the usage of Google’s service “suggest search”.

Google “suggest search” service is a software that suggests terms potentially connected to a word that the user is typing on Google search field to ease the identification of the most appropriate search results. A user had noticed that when his name was typed in Google search field, the software was suggesting also the words “fraud” and “fraudster”.

Such user alleged that such Google suggest search results were defamatory and therefore requested the Court of Milan to order to Google the removal in its “suggest search” software of the association between his name and these terms. The Court of First Instance deemed that the allegations from the user were grounded and issued an interim injunction ordering to Google the removal of the challenged suggest search results.

Google challenged the decision of the Court of First Instance and the Court of Appeal held that:

Google suggest search software is a merely automatic software based on the most frequest searches performed by users,
Google in the provision of this service is an hosting provider for the purposes of the E-Commerce Directive 2000/31/EC (while the Court of Rome in the Yahoo! case had qualified search engines as caching providers) and therefore can be obliged to remove unlawful contents following a court order,
the association between the name of the user and the challenged terms derives from the usage of Google software aimed at optimising the access to Google search results and
Google is liable for the potential negative consequences of use of such software because Google’s decision itself of using the Google suggest seach software and its mechanic of functioning.

In this context, the Court held:

“the software is only apparently “neutral”, due to the fact that it is based on an automatic system of mathematic alghoritms, because it loses its neutrality when as a result of the applicability of such automatism based on criteria selected by its creator it generates inappropriate search results“.

Also, the Court held that:

Google is not required to perform a preventive monitoring of the inappropriate results, but only to correct inappropriate results when challenged by users, but
the inappropriate Google Suggest Search results were leading per se to a potential defamation.

This decision is interesting because it makes reference to Google as an hosting provider in the provision of Google suggest search service, while in my view this is a service provided by Google for which it cannot be qualified as an hosting provider. Therefore, the potential risk is that despite of the contents of this decision Google is obliged to monitor the suggest search results which would prevent Google from keep on offering the service.

Do you want to discuss the above? Feel free to contact me, Giulio Coraggio.

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