SearchWiki – New Medium but the old laws still apply

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  • November 26, 2008
Patrick Altoft

Patrick Altoft

Director of Strategy

When Google launched SearchWiki I wondered what would happen when people started leaving defamatory comments about their competitors. Could this open up a legal minefield for Google? Could they get sued?

To find out the answer I asked Jason Dainty, Partner at Robinsons, Specialist IP law Firm to explain how UK law viewed services such as SearchWiki.

Following the recent buzz surrounding the launch of the new Google feature “SearchWiki”, this might be a good time to reflect on the wider implications of potential libel / defamation issues posed by the comments function which is a fundamental part of this exciting new search functionality.

When it comes to matters such as defamation and infringement of intellectual property, there is surprisingly little bespoke law.

A defamatory statement is one that tends to lower the claimant in the estimation of right-thinking members of society in general. Any party who has participated in the publication of the defamatory statement can be made liable. A claimant can therefore usually pick from a wide range of people to sue as the people involved can include authors, editors, publishing houses as well as bookshops, news stands and ISPs.

There are fewer reported cases of claims against the authors of defamatory statements published online than there are of cases against ISPs and other websites hosting blogs and forums. The reason for this is not because you can’t sue the author, but rather it is often more difficult to find him and more importantly, ISPs tend to have deeper pockets. However, claimants need to be aware that intermediaries such as ISPs or website in which blogs or forums are present, may be able to avail themselves of what has become known as the “internet defence”.

A person (let us say a website with a forum on it), has a defence to an action for defamation, if he shows that he:

  • was not the author, editor or publisher of the statement complained of;
  • took reasonable care in relation to its publication; and
  • did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement

In the case of the website owner, the issues normally come down to showing reasonable care and a lack of knowledge of the statement concerned. For example, in a case involving Demon Internet in 1999, it was held that where, after receiving a complaint, an ISP did not take steps to remove the offensive material from public access (even if at that stage it could not know whether the statement was likely to be defamatory), the ISP could not avail itself of the internet defence on the basis that it did not take reasonable care, and knew, at least once it had received the complaint, about the relevant post.

The result of this case is that websites, ISPs and any other intermediaries will need to remove posts in which complaints of defamation have been made as soon as they are told about them. This is called a “notice and take down procedure”. The website cannot afford to investigate the position first, before taking the post down, as it would then lose the ability to use the defence. As such, websites need to have procedures in place to act swiftly. However, if they exercise any editorial control over the content or the post, then again, they cannot use the defence.

In the case of SearchWiki, Google need not have a radically different policy than a prudent hosting site. It should have a policy of inviting parties to contact them in the event that they consider any comment to be offensive, and respond by deleting the post as soon as it can. This being the case, the aggrieved party will have to find another party to sue, which might be initially difficult if posts are anonymous or made by parties that are otherwise untraceable. There are legal mechanisms that would help to squeeze relevant information out of Google as to the identity of a posting party, however, that may not move the matter much further in many cases.

Companies, i.e. the parties that might be the subject of SearchWiki notes, therefore need to monitor Google’s new product carefully in order to try to catch any negative posts early. Reputation management is already a buzzword and some might argue a rapidly growing business area. This will undoubtedly become a more recognised business need for any serious online commercial operator in the future.

The law will encourage Google to respond quickly and take down the post upon complaint, which must be the main aim of an aggrieved party. Far better for Google to minimise damage by restricting circulation rather than leaving the way open for an “Injured party” to sue afterwards.

Author: Jason Dainty, Partner at Robinsons, Specialist IP law Firm (www.ip-rights.co.uk), © Robinsons 2008

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