Fate has dealt another blow to Google following the Viacom copyright action. This time it may be hit by the UK libel laws, that chilling tangle of case law and statute which only the English and Welsh legal system could invent.
Dotworlds, a UK-based Internet service company, may sue Google in the UK courts for the material the Google search engine delivers to searchers who seek more information on dotworlds.net.
Dotworlds’ director, Brian Retkin, claims some of the material is defamatory. He says he has asked Google not to deliver it up to searchers. But their discussions, he says, have been fruitless as the material keeps appearing. Hence the threat of libel.
Not our problem, says Google. We are not the publisher, just the innocent distributor. That is a valid defence under English and Welsh libel. But only as long as they really are the innocent distributor.
Once the distributor has been informed that the subject of the material considers it libellous of them, then the distributor stops being innocent and becomes the publisher. If they keep distributing it. And Google is keeping distributing the material Retkin objects to.
It is even worse, says Retkin. The material would probably never have been seen because it comes from obscure sites. It’s the power of Google which makes it readily available to the wide world.
Retkin and Google have been here before. They had a similar spat at the end of 2005. Google was too slow to delete items then, Retkin then said; so he threatened an action. But did not follow through.
Now he’s come back for another go.
Will he or won’t he go the whole hog this time?
The only legal issue which such a case would clear up is: what is a reasonable time and process for a distributor to use to take material down once it has been notified that the subject considers it libellous?
Behind all of this there is, however, a problem. The old problem of the balance of free speech and the right to guard a reputation. I already think that the balance in England and Wales is too much in favour of the reputation side.
But this raises a deeper issue. Who is the distributor to judge? Many will be extra cautious and take the material down., especially if they see that Google with all of its legal riches is willing to do so. So, without any judgement on the actual content of the material, down it comes.
Many publishers already act like this. They don’t want the hassle. They don’t dispute cases. They just fold. They know the odds are stacked against them. So the stranglehold of libel gets tighter.
Here’s hoping that Google fights.