Canadian Court Says Google Isn't A 'Publisher,' Not Responsible For Defamatory Content Returned In Search Results

from the because-duh dept

Mon, Jul 20th 2015 9:09am — Tim Cushing

Slightly over a month ago, a Canadian court (British Columbia) issued a ruling that basically stated it could order Google to block websites globally. This nonsensical, overreaching order was issued on behalf of plaintiff Equustek Solutions, Inc., which hadn't even originally named Google as a defendant. It wasn't until Google appealed the decision that it was actually roped into the lawsuit. The court defended all of its stupidity by pointing out the real problem here was Google's global reach, not the impossibilities and idiocy of its own decision.

For what it's worth, another Canadian court has come down on the side of Google, choosing not to hold it responsible for returning search results plaintiffs don't like.

Last month, Justice Lauri Ann Fenlon refused to force Google to block defamatory comments about a Vancouver lawyer, Glenn Niemela, from its global search results.

The British Columbia Supreme Court finds Google's position as a search engine to be wholly unlike that of a "publisher." This would be the sane view -- the one not espoused by the Equustek decision.

The plaintiff has been fighting to remove allegedly defamatory content from the internet. Google, for its part, had voluntarily delisted several URLs from being accessed at Google.ca (but not elsewhere at other domains). That wasn't good enough for Niemela, who wanted Google to remove them worldwide. This was despite the fact that Google wasn't under any legal obligation to delist anything and despite the fact that Niemela had to perform a bit of search engine wrangling to even get the offending URLs to show up.

In the present case, Mr. Niemela has identified additional URLs but they appear to be pre-existing links buried deep in search results. For example, in his tenth affidavit sworn January 20, 2015, Mr. Niemela states:

2. On January 6, 2015 I did a Google search of “Glenn Niemela”.
3. I searched to the last page displayed on the search results. The last page was page 38. Page 38 has the following notation:

In order to show you the most relevant results, we have omitted some entries very similar to the 380 already displayed.
If you like, you can repeat the search with the omitted results included.

Attached hereto as Exhibit “A” to this my affidavit (pages 3 and 4 of this affidavit) is a copy of page 38.

4. When I clicked on the above notation on January 6, 2015 the search on “Glenn Niemela” expanded to 69 pages.
5. On January 14, 2015 twenty-two (22) defamatory snippets and an associated twenty-one (21) URLs are released on this second layer of Google searches.

Each page on Google’s search results contains 10 URLs, with the most relevant and useful at the top of the list. I take judicial notice of the fact that few searchers will be motivated to move through 380 search results on 38 pages to reach what Mr. Niemela describes as “the second layer”. In any event, Google has agreed to block those URLs as well, voluntarily removing them from google.ca.

But Niemela still wanted an injunction because he was convinced these buried URLs were still harming his legal practice. The court notes that 90% of the searches for his name originated in Canada, where all the "harmful" URLs are currently being blocked. It also notes that Niemela performs 100% of his legal work in Canada, which would make him particularly well-insulated against the contents of these posts.

Furthermore, it points out that there are limits to what the court can actually order a site to do in other countries. Niemela has issues with US search results, but the Supreme Court correctly notes (unlike the other BC court) that it can't actually make Google do anything in the US.

Finally, the Court is reluctant to make an order that cannot be complied with. Mr. Niemela acknowledges that Google is not able to comply with an order compelling it to block defamatory search results in the United States. Two federal statutes, the Communications Decency Act of 1996, 47 USC (1996), and the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 USC (2010), protect internet providers such as Google and block enforcement orders that would infringe on the First Amendment right to free speech.

Among the other issues the court had with this particular case are the fact that Niemela sat on these "harmful" URLs for two years before bringing the lawsuit. Not only that, but he had failed to show any evidence that the existence of these URLs (and their accessibility from other countries) had actually harmed his current and future business prospects. Damningly, the court flat out states that Niemela is his own worst enemy, and that perfectly legal (and non-defamatory) detrimental information about him and his practice is easily accessible to anyone using Google from anywhere.

[W]hile Mr. Niemela attributes the decline in his law practice to the defamatory statements and their general accessibility through search engines such as Google’s, there are other possible explanations. A disciplinary history with the Law Society is prominently revealed in Google searches of “Glenn Niemela”.

Even if Niemela had put together a better case, it's unlikely this particular court would have followed the other BC court into infamy by issuing an impossible, imprudent and likely illegal court order. The court found that "publication" is a necessary element of defamation, and Google -- no matter its marketshare and global reach -- is nothing more than a search engine.

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Filed Under: canada, defamation, glenn niemela, global, intermediary liability, vancouver
Companies: google

35 Comments

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Ninja (profile), 20 Jul 2015 @ 7:25am

Mr. Niemela attributes the decline in his law practice to the defamatory

I think not understanding actual law and jurisdictions may be part of the problem. And now making it very, very visible. Won't Mr Niemela think of poor Ms Streisand?
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mattshow (profile), 20 Jul 2015 @ 9:41am

You keep referring to the "other" BC court. But it's the same court. In fact, it's even the same judge (Justice Fenlon).
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mattshow (profile), 20 Jul 2015 @ 9:50am

Re:
To clarify: the injunction against Google in the Equistek case was first issued by Justice Fenlon in the Supreme Court of BC. It was then upheld by the Court of Appeal. It's Justice Fenlon again who has issued the order in the Niemala case (without apparently even referencing the Equistek case).
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mattshow (profile), 20 Jul 2015 @ 9:52am

Re: Re:
Never mind, apparently I just don't know how to spell. It's Equustek, not Equistek. Justice Fenlon does provide some justification for why the two cases are different.
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Anonymous Coward, 20 Jul 2015 @ 12:48pm

Oh, Canada. Being sensible about Google will never get you off the Special 301 Report.
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Anonymous Coward, 20 Jul 2015 @ 12:59pm

Nit on the court
Finally, the Court is reluctant to make an order that cannot be complied with.
That order could be complied with. The Court should have said "make an order that cannot be enforced," since, as the article points out, U.S. Federal law would likely preclude any effort to compel non-Canadian Google branches to comply with the order. Voluntary compliance, by way of delisting everything related to the plaintiff, is technically possible, although wholly unwarranted.
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Anonymous Coward, 20 Jul 2015 @ 1:15pm

Re:
Mr. Niemela attributes the decline in his law practice to the defamatory

He may attribute the decline to defamatory statements, but the Law Society of BC seems to think it might have more to do with people spreading the word that he fails to respond to people in a timely fashion. Habitually.
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Gracey (profile), 20 Jul 2015 @ 1:49pm

Meanwhile on bing ....

http://www.britishcolumbia.name/news/dont-google-this-lawyer/

(and dat's just one of them)

The more you complain, the more people write, the more there is to remove.

Neverending circle wasting everyone's time.
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Anonymous Coward, 20 Jul 2015 @ 3:01pm

I guess Mr. Niemela does not understand the Streisand effect.

Would someone in Vancouver please go and inform him of what a moron he is.
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Anonymous Coward, 20 Jul 2015 @ 3:58pm

Not to mention they would be available on every other search engine but hey fuck reality right. Google is the internet to old people.
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Anonymous Coward, 20 Jul 2015 @ 4:25pm

Re:
The more you complain, the more people write, the more there is to remove.
There should be a name for things like that...
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tqk (profile), 20 Jul 2015 @ 5:16pm

Lawyers. :-P
Fails to respond in a timely fashion? I expect that he had a few assignments in law school which needed to be submitted prior to their deadlines, so he must have learned this after graduating. Do lawyers brains shut down once they pass the bar exam? "I passed! Entitlement City, here I am!"

Google, please stop shielding dolts like this. We deserve to know what people like this are up to, and humouring them isn't helping anyone. There was never any need for you to even acknowledge his existence, much less help him dig his hole even deeper.
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Stosh, 20 Jul 2015 @ 7:02pm

I hear he's going after the Dewey Decimal System next in case any defamatory information exists at the local library.
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Anonymous Coward, 20 Jul 2015 @ 8:29pm

The thing is if something has been found defamatory by a court of law then why shouldn't Google and other search engines remove it?
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Anonymous Coward, 20 Jul 2015 @ 8:33pm

And this raises another issue. Ripoff Report is basically a shakedown service where anyone can libel any business they want with no evidence whatsoever and Ripoff Report will only take it down if the business ponies over thousands of dollars for an "investigation" and because Ripoff Report scores highly on Google there's nothing the business can do except pay the shakedown fee or spends thousands of dollars or more on "reputation" defense in an attempt to build enough sites that place high enough to push the ROR page down. The Communications Decency Act supports such nonsense by holding that web publishers and ISPs aren't responsible for defamation that is put on their site - even if it's prima facie defamation and even if it's been found defamatory by a court of law.
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Anonymous Coward, 20 Jul 2015 @ 8:36pm

Re:
Wouldn't it be easier, and fairer, if defamatory material was removed? It's pretty easy to tell a victim to suck it up if you haven't had it happen to you.
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tqk (profile), 20 Jul 2015 @ 9:47pm

Re:
Google's helping them find those who're posting defamatory content. They should go after them, not search engines.
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R.H. (profile), 20 Jul 2015 @ 9:57pm

Re: Re:
If they actually have a case for defamation, then they should be able to go after the sites where the defamatory statements are actually stored rather than a search engine that simply lists things on the Internet.
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Anonymous Coward, 20 Jul 2015 @ 11:17pm

Re: Re: Re:
He did do that, the sites were ordered to remove the material and it appears some didn't so he also tried to get Google ordered to delist the sites in question. And why are you saying "if they actually have a case for defamation" when the court did rule that the material was defamatory? The issue isn't whether or not it was defamatory - that's been settled - the issue is whether Google should be required to delist material that has been ruled defamatory.
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Anonymous Coward, 21 Jul 2015 @ 12:36am

Re:
Because that leads to an automatic system with no vetting of what is being taken down. Politicians, and people and companies who con people or are outright criminal would all abuse so that they can keep on doing what they want to do. Just look at the problems with contentid.
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Wendy Cockcroft, 21 Jul 2015 @ 2:29am

Re:
I sympathise, having been on the end of reputation trashers myself, but can only say that the more we complain about Ripoff Report being a ripoff site, the lower its reputation will fall. I might actually have taken it seriously as a consumer advisory site if I hadn't been warned about it here on Techdirt.

I daresay sooner or later their abuses will hit critical mass and when that happens, it's blowback time. The number of people complaining about them will be greater than the number of people believing their crap and if you look it up you will only see negative coverage of ROR.

So... the more you complain, the more they'll try to explain. Meanwhile, demanding money to remove false statements sounds a lot like extortion to me. Depending on what the laws are where they're based there might be criminal repercussions for their shady activities.

So yeah, TD readers are aware of what a ripoff ROR is and we don't take them seriously. I don't.
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nasch (profile), 21 Jul 2015 @ 7:20am

Re: Re:
I sympathise, having been on the end of reputation trashers myself, but can only say that the more we complain about Ripoff Report being a ripoff site, the lower its reputation will fall.

So one of the Techdirt themes - the best solution to bad speech is more good speech.
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Bergman (profile), 21 Jul 2015 @ 8:21pm

Re: Nit on the court
I wonder, could you file suit against Google in some other country than the US for something illegal where the lawsuit is filed, and ask for a global injunction phrased in such a manner that if Google complied with it in Canada, it would violate Canadian law?

If Canadian courts truly believe they can reach into other nations and compel companies in those nations, they shouldn't have a problem with other nations doing it to Canada, right?
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Anonymous Coward, 21 Jul 2015 @ 9:56pm

Re: Re:
Fine - but in this case there has been a court finding of defamation. There is such a degree of groupthink here regarding an absolutist conception of free speech that it's forgotten that a) defamation is a real thing b) it causes real damage and can't always be dealt with by ignoring it in hopes it'll go away. Everyone here talks about Barbra without realizing when they themselves are leading the chorus of Funny Girl.
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Anonymous Coward, 21 Jul 2015 @ 9:58pm

Re: Re:
Great that TD readers don't take ROR seriously - but what about everyone who does? And what if it shows up on the first page of your SERPs? Wouldn't it be more responsible for Google to recognize the poor quality of the site and either delist it or punish it?
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Anonymous Coward, 21 Jul 2015 @ 10:04pm

Re: Re: Re:
That doesn't always work. A) Bad speech can be toxic b) If one "bad speech" article shows up on the top of your SERPS you have to support 20 or 30 "good" or neutral speech articles to force it down - you have to put in a lot more effort to do that than it took to get the bad speech up there in the first place. So for a regular person who isn't an IT professional or dedicated hobbyist that means either spending thousands of dollars on "reputation defense" or investing hundreds or even thousands of hours of your own time in countering the speech online. And what if you're a teacher (or anyone really) and the "bad speech" is a false claim that you're a child molester. Even if that's on a non-credible site like ROR or something similar the fact is most people who read something like that aren't going to just dismiss it even if they have doubts. Ultimately, whether you folks like it or not, ISPs and search engines are going to have to take responsibility to remove defamatory material - either voluntarily or by regulation. If people continue to abuse the web as a defamation machine and, yes, ruin lives in the process ultimately the outcry will result in the Communications Decency Act being repealed or struck down in court.
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tqk (profile), 21 Jul 2015 @ 10:40pm

Re: Re: Re:
Wouldn't it be more responsible for Google to recognize the poor quality of the site and either delist it or punish it?

Since when is a web search engine responsible for sanitizing the web? You might offer to send them some money to build such a thing for you, but I suspect it'll cost a lot. It's not their usual job. It sounds silly to me, but some people might want that. I prefer to make decisions for myself based on my own research.

Google's being responsible by giving them all the rope they want, the better to hang themselves with.
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nasch (profile), 22 Jul 2015 @ 7:33am

Re: Re: Re:
Fine - but in this case there has been a court finding of defamation.

Yeah, and Google already took down the links to that defamatory material in Canada. This is about whether a Canadian court should be able to force an American company to change its practices on its American web site. Do you think it should?
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nasch (profile), 22 Jul 2015 @ 7:42am

Re: Re: Re: Re:
That doesn't always work.

And what is your solution that always works?

If people continue to abuse the web as a defamation machine and, yes, ruin lives in the process ultimately the outcry will result in the Communications Decency Act being repealed or struck down in court.

I don't know about that - I'm not sure precisely what section 230 does. I know it shields web sites from liability for the actions of their users, but it doesn't say that they cannot be compelled to take down defamatory material does it? If so, then that would seem to me a reasonable change to make. If not, then that isn't the problem. There is already a tool to make the web sites take down the material after a court has found it defamatory.

So the question is, what about outdated search engine links (eg Google still has a snippet available after the libelous page is taken down)? What about the internet archive? Those are more slippery and less obvious questions. It's easy to want to protect one specific person from a definite harm, especially when the possible harmful consequences of doing so are unclear and diffuse. That doesn't mean we should go ahead and do it, it means we need to be extra careful about crafting a solution.
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John Fenderson (profile), 22 Jul 2015 @ 8:39am

Re: Re: Re:
" Wouldn't it be more responsible for Google to recognize the poor quality of the site and either delist it or punish it?"

No.

It's not a search engine's role to decide what sites are of good or poor quality, let alone to punish sites based on such a determination.

The role of a search engine is to locate web pages that are as close to what people are searching for as possible. That is all. Full stop.
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Anonymous Coward, 23 Jul 2015 @ 1:18am

Re: Re: Re: Re:
No one is asking a search engine to "decide" anything but once a court has decided that something is defamatory search engines should respect that and if a site is a defamation machine, such as Rip Off Report, it should not be treated as a quality site. Google will delist or degrade the rankings of sites for all sorts of technical offences so why not defamation?
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nasch (profile), 23 Jul 2015 @ 7:29am

Re: Re: Re: Re: Re:
No one is asking a search engine to "decide" anything but once a court has decided that something is defamatory search engines should respect that

They should choose to respect it, or they should be forced to respect it?
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Anonymous Coward, 23 Jul 2015 @ 12:21pm

Re: Re: Re: Re: Re: Re:
Why shouldn't they respect it? And I'm sorry but if the industry doesn't act responsibly than regulation is an option. It's interesting how often ISPs and search engines insist they are "utilities" - well, in most of the world utilities are regulated.
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nasch (profile), 23 Jul 2015 @ 12:42pm

Re: Re: Re: Re: Re: Re: Re:
Why shouldn't they respect it?

I don't mind if they do, I was asking if you thought it should be mandatory.

And I'm sorry but if the industry doesn't act responsibly than regulation is an option.

If it's within the laws of the nation in question, yes. It's very tricky to regulate speech in the US. Canada perhaps not quite as much.

well, in most of the world utilities are regulated.

Because they're monopolies, not because they're utilities.
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Anonymous Coward, 24 Jul 2015 @ 12:01am

Re: Re: Re: Re: Re: Re: Re: Re:
They're also regulated when they're not monopolies.
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