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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  1. identicon
    Anonymous Coward, 24 Jul 2009 @ 2:01pm

    Re: Re: Re: Re:

    "if (in your example) one newspaper publishes something that is libelous, and another newspaper publishes *ABOUT* the fact that the first paper published something libelous, that second paper is NOT liable. They are reporting on the facts of the story."

    Mike, you always get up my butt about not reading carefully, but did you? I said:

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

    I didn't say they write a story saying "this other newspaper said" but rather a verbatim reprint (say that newspaper 1 put it on the AP wire). Liablity could extend to every newspaper that publishes it. It is more likely that the first one that published it and put it on the wire would eat the liabilty, but there is potential for each publisher to be liable. I would suspect that most of them would end up running similar sized retractions to avoid liablity.

    As for your points, you are assuming that (a) the scam has been proven, and (b) the news organization is reporting on that proof. When you get into third party comments, the writing has to be done carefully, so as to avoid creating liablity for the newspaper. Unlike this blog, the writers cannot draw broad brush conclusions.

    Again, all of my questions were based on the idea that the statement made is libelous. I think you also misread that, or choose to answer the points with non-relevant information.

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