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

from the confusion-abounds dept

Fri, Jul 24th 2009 10:29am — Mike Masnick

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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Filed Under: algorithms, france, libel, suggestions
Companies: cnfdi, direct energie, google

21 Comments

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Anonymous Coward, 24 Jul 2009 @ 10:54am

"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.
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PaulT (profile), 24 Jul 2009 @ 11:31am

Re:
So, please explain for those of us who happen to agree:

Why should Google be liable for accurate reporting of users' searches? Remember, this isn't Google making a statement themselves, but simply reporting accurately on what their users are doing.
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Anonymous Coward, 24 Jul 2009 @ 11:34am

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?
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BullJustin (profile), 24 Jul 2009 @ 11:42am

Re: Re: Re:
Primarily because Google neither published a libelous statement nor republished another's libelous statement. They simply presented a list of other user's search terms ranked by the frequency those terms are used. Additionally, Google was not found guilty of libel in this case, as the one who sued for libel lost.
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Anonymous Coward, 24 Jul 2009 @ 11:43am

Re: Re: Re:
If a newspaper conducts a poll and the users' response is overwhelmingly libelous, is the newspaper liable for it? (no)
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Mike Masnick (profile), 24 Jul 2009 @ 11:48am

Re: Re: Re:
1. The statement isn't necessarily libelous. If it's true that the company scammed people, that's not libel.

2. Accurately reporting on a scam is not libel.

3. Accurately reporting that people think it's a scam is not libel.

4. Accurately reporting that many people are searching to see if it's a scam is not libel.

5. If it's false that the company is a scam, then even so Google is not liable, because they did not claim that the company is a scam -- they merely reported what others searched for. In the same way, 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.

There's nothing in here that could be considered libel.
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Ryan, 24 Jul 2009 @ 11:48am

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.
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Ryan, 24 Jul 2009 @ 11:54am

Re: Re: Re: Re:
In the same way, 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.

Not a lawyer, but I looked this up, and I guess that contrary to what seems obvious, this is not always the case?
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PaulT (profile), 24 Jul 2009 @ 11:58am

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.
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orly, 24 Jul 2009 @ 12:16pm

The real question is why are judges not accompanied by experts in whatever field they are working with. I've seen way too many technology cases where the judge has no clue how something works, and is easily swindled.
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James, 24 Jul 2009 @ 12:23pm

Re: Re: Re:
For one thing the defense to libel is truth. Google is accurately reporting the top user search. It is not saying that the companies involved at running a scam. It is telling the truth about the search results, hence there is no libel.
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DJ (profile), 24 Jul 2009 @ 12:55pm

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!
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Blitze, 24 Jul 2009 @ 12:59pm

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.
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DJ (profile), 24 Jul 2009 @ 1:23pm

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
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DJ (profile), 24 Jul 2009 @ 1:25pm

Re: Re:
and yes I'm aware of the difference between slander and libel, hence the context difference....
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Ryan, 24 Jul 2009 @ 1:35pm

Re: Re:
Alternatively:

1) Sit on your hand for 10 minutes

2) Masturbate with the same hand when you don't feel like it

3) Now ask yourself: is your right hand guilty of sexual assault, or did you molest yourself?
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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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Anonymous Coward, 24 Jul 2009 @ 2:13pm

Re: Re: Re: Re: Re:
"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."

...
...
...
...
...
Oh, I get it. So you're not going to bother arguing libel in the slightest, despite the fact that this is the entire point of the issue at hand, and instead assume that you've already won the argument that never took place.

Lovely.

"Google didn't make a libelous statement."
"Google is liable for libelous statements."
"But Google didn't make any libelous statements to be liable for!"
"You're an idiot, I was assuming that they did!"
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ChasW, 24 Jul 2009 @ 4:50pm

Solution
If I were Google, I'd remove them from the search completely. Then they won't have to worry about being associated with anything they disapprove of in the searches!
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Anonymous Coward, 24 Jul 2009 @ 5:15pm

Re: Re: Re: Re: Re: Re:
Lovely. I was making a point not DIRECTLY on the Google material, and you paint me like I was talking directly about google. GO read my original post and stop being ignorant. You are worse than Mike (and that is pretty hard to do this week)
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peter sklar, 7 Feb 2010 @ 8:04pm

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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