Full case report

Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc

Reference [2009] EWHC 1765 (QB); [2009] EMLR 27
Court Queen's Bench Division

Judge Eady J

Date of Judgment 16 Jul 2009


Summary

Defamation – Internet – s.1 Defamation Act 1996 – E-commerce Regulations 2002 – Innocent dissemination at common law – Abuse of process – CPR r.11 – Service out of the jurisdiction


Facts

C, a distance learning course provider, notified Google and a third party website that they were publishing defamatory statements bearing the meaning that its products were a scam. The original statement was published on a web discussion forum. Google searches on the product name produced the scam allegation as part of a snippet of information accompanying the hyperlink. C notified Google and the web forum site of its complaint and issued proceedings when neither removed the statement from the internet or search results. Google Inc (domiciled in the US) made applications to have the order for service out of the jurisdiction set aside and for a ruling that the court should decline jurisdiction on grounds of public policy, abuse, non-publication, and defences under s. 1 Defamation Act 1996, regs 17 – 19 of the E-commerce regulations 2002, and innocent dissemination at common law.


Issue

(1) Whether Google was a publisher at common law;
(2) Whether Google could avail itself of the defence of innocent dissemination (if the defence had not been abolished by the Defamation Act 1996);
(3) Whether Google could avail itself of the s. 1 defence;
(4) Whether sections 17 – 19 of the E-commerce regulations applied to search engines when read purposively with the Directive and decisions of European courts on the equivalent national provisions;
(5) Whether the Master’s order for service out should be set aside.


Held

(1) A search engine is not a publisher at common law, whether before or after notification of a defamation claim and is not analagous to a website or ISP, the search engine having no input over search terms entered and the process of publication being automated.
(2) The defence of innocent dissemination at common law was not abolished in 1996 but did not assist a defendant who knew it was distributing defamatory content.
(3) If Google had needed to rely on s.1, it was difficult to see how it qualified for s.1 protection, no reasonable care being inherent in an automated system.
(4) The UK Government had already taken the view that the protection of the E-commerce Regulations did not extend to search engines. Statutory intervention would be needed before a search engine might be considered a webhost within Regulation 19.
(5) There was a material misrepresentation on the application to serve out of the jurisdiction which justified the Master’s order being set aside.


Comment

This was the first decision in the United Kingdom on the liability of search engines for defamation and offers great comfort to search engines. Eady J developed the common law to offer what amounts to immunity from liability for defamatory content within search results – something that the Government had omitted to do when considering an expansion of the protection afforded by the E-commerce Regulations. Although the Judge appears to acknowledge in his judgment that a voluntary or statutory take-down procedure for search engines may be desirable, his finding that they are not publishers must make it questionable whether search engines will now take down libellous material from their servers. The judgment is also notable for the ruling that the defence of innocent dissemination at common law was not abolished by s.1 of the 1996 Act.


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Instructing Solicitors

Eversheds LLP for Metropolitan International Schs Ltd; Reynolds Porter Chamberlain for Google Inc