Can I Sue When Google Suggest Suggests I am a Fraud?
If Google Instant or Google Suggest adds “is a scam” to the search inquiry for you or your company, can you sue? This is something I had not thought about until I sat in an SMX West presentation by Avi Wolensky of Promediacorp. He told the story of a neighborhood retailer who had good SEO and organic results and a clean history. Yet, Google was now suggesting people searching for the store might want to search whether the store was a scam. Considering a Google Senior Staff Software Engineer was also part of the panel, it made for an interesting discussion.
Danny Sullivan of Search EngineLand explains Google Instant in depth. Google suggested the following when I entered my name on my home laptop:
Travis Crabtree Facebook
Travis Crabtree Fouke, Arkansas
Travis Crabtree Boggy Creek
Travis Crabtree Houston
If a whole bunch of you want to search “Travis Crabtree legal genius” to see if Google makes that suggestion going forward, then by all means. I’ll explain Fouke, Arkansas and Boggy Creek below.
Being the nerdy lawyer, I immediately began wondering if Google could be subject to liability for these “suggestions.” Google is, of course, not liable for the search results and ads because that is content by others. Section 230 of the Communications Decency Act shields website operators from liability for content provided by others as long as the site is not the “publisher” of the damaging content. Google, although done through a computer, is the publisher of the “suggestions” so can’t they be liable?
Apparently, someone has tried. When she entered her name, Google suggested Bev Stayart should be followed by a sexual dysfunction drug named levitra. She sued Google for captilaizing on her so called publicity and lost. Professor Goldman opines that Section 230 should have been enough. The court did not get into Section 230 analysis and instead dismissed the case claiming the plaintiff failed to state a claim because the plaintiff had no publicity rights with any commercial value to her name.
The case does not mean a company could not sue if they can show actual damages which happened in Italy. Obviously, Section 230 is only law in the U.S., so the Italian case provides no authority for what could happen here, but it presents an interesting example. In the Italian case, an individual noticed Google was suggesting users searching his name include the word fraud or fraudster. The Italian “trial” court held it was defamatory and ordered Google to take down the suggestions.
On appeal, as explained by Gaming Tech Law’s Giulio Coraggio, ruled:
- Google suggest search software is a merely automatic software based on the most frequest searches performed by users,
- Google in the provision of this service is an hosting provider for the purposes of the E-Commerce Directive 2000/31/EC (while the Court of Rome in the Yahoo! case had qualified search engines as caching providers) and therefore can be obliged to remove unlawful contents following a court order,
- the association between the name of the user and the challenged terms derives from the usage of Google software aimed at optimising the access to Google search results and
- Google is liable for the potential negative consequences of use of such software because Google’sdecision itself of using the Google suggest seach software and its mechanic of functioning.
Google was not ordered to monitor and self-regulate, but only respond to complaints of defamatory suggestions.
Despite Professor Goldman’s dismissal of the American case, I would not be surprised if someone, like Avi Wolensky’s neighborhood retailer, tries to make a claim here in the U.S.
Now, on to the Fouke, Arkansas Travis Crabtree reference. While in college, before YouTube, some classmate of mine somehow came across the Legend of Boggy Hollow which purports to be a scary movie based on the allegedly true story of the Fouke Monster in Fouke, Arkansas. One of the protagonists of the story is none other than Travis Crabtree. I thought I had gotten past the references and then came Google Suggest and YouTube. Although I am not going to sue, from this video you can see why “Travis Crabtree Legal Genius” is a better suggestion then being serenaded.