Two Separate Rulings In France Split Over Whether Google's Suggestion Algorithm Can Be Libelous

from the confusion-abounds dept

Reader Yann alerts us to an interesting set of lawsuits and decisions in France, both concerning the Google Suggest feature. One case involved a company named Direct Energie and the other with a company named CNFDI (both links to the Google translation of the news).

In both cases, the companies were upset that when people started searching on their company names, the first suggestion was their company name followed by the word “arnaque,” which means “scam.” Of course, as you probably know, Google Suggest works by finding the most common searches on what you’ve typed and letting you know. So, all this really meant was that an awful lot of people were doing searches questioning whether or not these two companies were scams. But, is Google liable for its algorithm accurately suggesting the most common searches associated with those company names? It appears the courts split on that decision (it’s worth noting that there was one major difference between the lawsuits: Direct Energie sued under civil code, while CNFDI sued for libel — which apparently makes it a criminal case in France.

With Direct Energie, the judge seemed to not really understand Google Suggest or how it worked, declaring that no algorithm could justify the prejudice caused by Google. He then got confused, saying that it was clearly Google’s fault because the search on “direct energie arnaque” was not the first alphabetically in the list, nor did it have the highest number of results. Despite it being explained by Google, the judge seems to have totally ignored the reason why it was at the top of the list (the number of people searching for it). Because of this, he said it’s no limit on free speech to force Google to change the results, and ordered Google to do so (though, did not allow for any damages to be awarded). This seems to get the basic facts backwards, and it seems quite ridiculous to find Google guilty of such a charge when all its actually doing is accurately counting up what people are legitimately searching for.

The CNFDI ruling, seems much more reasonable. There was one oddity (though it’s probably got more to do with French law than with the judge), and that is that the judge ruled that Google could be liable for libel because the company had been informed by CNFDI of the issue, thereby removing any safe harbors. In the US, Section 230 safe harbors on libel thankfully do not get waived if you’ve been informed. Instead, they take the much more logical position that a third party service provider should never be blamed for actions of its users. Thus, it would be flat-out ridiculous to blame Google for the phrases people are searching for. But, even having lost its local “safe harbor” protections, the judge properly recognized that the suggestion came from the algorithm looking at what people were searching for, and noted that the suggestion was based on “a valid observation.” On top of that, he pointed out that search engines are “important tools for the free circulation of ideas and information,” and the fact that many people were questioning whether CNFDI was a scam was, in fact, important and potentially useful information, and thus not libelous by itself. Finally, the court also noted that forcing Google to remove such a suggestion would be too big a burden on free speech and citizens’ rights.

It should be no surprise that I think the second ruling is much more sensible, while the first ruling makes little sense, and appears to have been decided without a full understanding of what Google’s Suggest feature is or how it works. Still, I imagine we’ll be seeing similar cases around the world… and hopefully they’ll find themselves in front of judges more like the one that dealt with the CNFDI case…

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Companies: cnfdi, direct energie, google

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Comments on “Two Separate Rulings In France Split Over Whether Google's Suggestion Algorithm Can Be Libelous”

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21 Comments
Anonymous Coward says:

“It should be no surprise that I think the second ruling is much more sensible, while the first ruling makes little sense, and appears to have been decided without a full understanding of what Google’s Suggest feature is or how it works.”

It should be no surprise that you think the second ruling is more sensible, because it is the position you have pushed yourself before.

Nothing like a simpatico ruling to make you all fuzzy inside.

Anonymous Coward says:

Re: Re: Re:

Let me ask you this: If a newspaper publishes a libelous statement, are they liable for it? (yes).

If another newspaper copies the story and runs it, are they liable for it? (yes)

If a website copies the story and runs it, are they liable for it? (yes).

Why is Google so special?

Ryan says:

Re: Re: Re: Re:

For one, the very obvious fact that the search terms are not a deliberately published item from Google, but the result of an algorithm based upon users’ actions. If I conduct a poll of techdirt users to find what they think of you and then release the results, am I liable simply because you believe the facts to be inconvenient? Is Google liable for any possible website appearing in its search results that may make a libelous statement? If you believe so, then how can search engines possibly exist? Nobody can check the veracity of every site on the internet.

PaulT (profile) says:

Re: Re: Re: Re:

Because Google aren’t publishing anything. They’re returning results from a mathematical algorithm that’s reporting what users are searching for.

Nothing that’s generated by Google’s algorithm is edited, approved or representative of anybody’s opinion. It’s simply an accurate indication that a lot of people are searching for a term. Google have no control over whether people are searching for “Techdirt are con artists who steal from babies” or “Techdirt is the best site ever”. I don’t see how it’s libel if Techdirt don’t like one of those terms – if people are searching for that term, they’re returning accurate information.

DJ (profile) says:

A simplification...

Let’s put this in simpler terms, shall we?

An algorithm is a set of rules for solving a problem in a finite number of steps, as for finding the greatest common divisor. In other words, it’s a mathematical equation.

So… if 5000 people “google” to see whether or not you (whoever you, in this case, might be) are a complete bastard, and then you “google” yourself and the first hit is:
“Is YOU a COMPLETE BASTARD?”

Did Google just call you a bastard?

NO!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

It’s just the algorithm bringing up the most common SEARCH PARAMETER!

Blitze says:

The reason Google is not liable is completely obvious…
The algorithm has NO opinion. A newspaper, website, etc has an opinion.

Let me ask you something. If Google were to remove this one reference that the PUBLIC has brought up, what would stop a company from doing this: I am Newegg and when you google Newegg, at the bottom TigerDirect is there. Google this shouldn’t happen because it hurts my business.

Now would that make sense? No because the point of Google is nothing more than to find things, thus the search engine is doing its job.

DJ (profile) says:

Re: Re:

JOOC I googled Newegg to see if your scenario would happen. Duh, it didn’t (at least not in the first 12 pages I scrolled through), but that doesn’t invalidate your point. It just means that you’d have to include something in your search like “computer parts” (didn’t check that).

I say this more for the benefit of the nay-sayers reading this. Everyone who thinks Google is at fault I have a challenge for you:
1)Google your own name and write down just the first hit result, but keep a mental note of the other 9

2)Google yourself 100 times using a slanderous parameter (yes, I’m asking you to slander yourself). Keep track of which number you’re on as you go (yes, I’m asking you to count to 100)

3)Did the first hit results change to reflect the searches you, yourself, just performed? If not the first hit, I’d bet it’s at least on the first page of results.

4)Now ask yourself: Is Google now guilty of libel, or did you slander yourself?
Answer: goto 2

peter sklar says:

Prompt List

One major issue everyone seems to ignore- the above posters, judge, lawyers, plaintiffs, etc- is that once a prompt word or phrase rises to the top of the subject list, it is virtually assured of staying there, since it will inevitably continue to receive more hits than anything lower on the list. This means that contrary to Google’s claim, neither Google’s algorithm system, nor an individual person conducting a random search, have any idea whatsoever what most people might have randomly searched for if the prompt list didn’t exist. In other words, it is disingenuous and misleading for Google to assert that the prompt list merely reflects the random search choices of the public, when in truth it is the ordering of search terms that largely determines those choices. The prompt list is nothing more or less than a self-perpetuating syndrome. It is NOT an accurate reflection of day-to-day, or month-to-month, or year-to-year public curiosity.

It therefore seems to me that Google is playing a much larger role than it would have the public and the courts believe in determining search results.

If this is true, and such “results” amount to defamation, why does this not render Google liable?

Just a question. -P

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