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Google held not liable for linking to defamatory content

May 26, 2013

google_logoIn ruling recently handed down by the Spanish Supreme Court, Google has been held not liable for linking to pieces of news containing false accusations against an individual.

This is the first case in which the Supreme Court deals with the specific “safe harbor” for information location tools (the linking safe harbor).

While the Electronic Commerce Directive chose not to establish a safe harbor for information location tools, the Spanish transposition law did establish a specific liability exemption covering this activity. According to Art. 17 of Ley de Servicios de la Sociedad de la Información, information society service providers providing links, directories or information search tools shall not be liable for the information to which they lead their users. This liability limitation is subject to the condition that the provider does not have actual knowledge that the activity or the information to which it directs, or which it recommends, is illegal, or that it damages a third party’s goods or rights. In case the provider obtains such knowledge it must act diligently to remove or to disable the link, in order to benefit from the exemption.

In this case, the plaintiff brought a civil action against Google and its CEO on account of the search results pointing to three websites where false accusations against the claimant were made. The claim was that by contributing to spread the defamatory content, Google was harming plaintiff’s reputation. The claimant had requested Google to take down the links several times, which Google refused to do, until the plaintiff finally filed the complaint.

The court of first instance dismissed the claim, holding that Google was protected by the linking safe harbor, and asserting that, despite the requests made by the claimant, the search engine did not obtain the required actual knowledge of the linked content’s illegality. The ruling was upheld by the Court of Appeals. Now the Supreme Court confirms again the dismissal.

A key element is the notion of actual knowledge. The linking safe harbor defines it in the same terms than the hosting safe harbor:

“It will be understood that the service provider has the actual knowledge referred to in […] when a competent body has declared that the data are unlawful, or has ordered their removal or the disablement of access to them, or the existence of the damage has been declared, and the provider knew of this resolution, without prejudice to the procedures of detection and removal of content that providers may apply by virtue of voluntary agreements, and without prejudice to other means of actual knowledge that might be established.”

The Supreme Court had already established in a 2009 ruling dealing with the hosting safe harbor that this narrow notion of “actual knowledge” was inconsistent with that provided for in the E-Commerce Directive, and  that it should thus be construed in a broad way so as to encompass the knowledge derived from facts or circumstances from which the illegal activity is apparent.

The Supreme Court deals now for the first time with the lack of actual knowledge requirement within the linking safe harbor and assumes that it must be construed in the same open way. It holds, nonetheless, that the notifications made by the claimant were not enough as to put Google in knowledge, because the illegal character of the information was not obvious in itself. Therefore, Google didn’t need to take the links down to benefit from the linking safe harbor.

Interestingly, thus, in seems that in a situation like the one considered in this case, the only way for Google to gain the relevant knowledge would have been a court order declaring the illegality of the linked content, much in the way of the narrow interpretation of the provision.

The text of the ruling (in Spanish) is available here

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2 Comments leave one →
  1. May 28, 2013 12:21 pm

    Thank you Miquel for a great post.

    I was always puzzled by the fact that CJEU never said explicitly that notion of ‘actual knowledge’ is an autonoumous concept of the Union law as it does always when the term is not definied in the Union law. Despite this, we IMHO know that notion is in fact autonoumous as interpreted in L’Oreal v. eBay. And that it ‘must be interpreted as covering every situation in which the provider concerned becomes aware, in one way or another, of such facts or circumstances’ (§ 121) and that ‘notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated’ and thus not triggering actual knowledge (§ 122). Now, I am wondering, if the Spanish Supreme Court recognized that Spanish standard of actual knowledge can not live it’s own life due to Union law (so it is not possible to link knowledge to only decision), how is it compatible to say that ‘notifications made by the claimant were not enough as to put Google in knowledge, because the illegal character of the information was not obvious in itself’. I mean, I haven not seen the notices to judge if they were ‘sufficiently precise or adequately substantiated’, and I know eBay was decided in the context of hosting, but it appears to me that court is in fact trying to link the knowledge to the decision of the court again. So do you have a separate standard for linking and separate for hosting, just because the first is not harmonised?

    I undersand that the court wants to avoid liability of Google, but why this approach? E-commerce directive’s safe harbours were not ment to harmonise the moment of liability, but moment of it’s exclusion. In other words, Spanish national civil law still decides when the liability is founded (limited by safe harbours). And this does not have to be a moment of a loss of a safe harbour. So the court could on one hand apply E-Commerce directive like hosting standard of actual knowledge and on the other, reject the liability. It all depends on how the Spanish tort law addresses this issue, does it have a broad negligence based liability for acts of others (e.g. illegal omission)? If so, don’t you have checks in this doctrine that would take into account the reasonable efforts that could have been undertaken by Google in his position?

    And what was the result of the case? Did Google have to remove the link? I am also quite suprised that the plaintiff did not ask just for an injunction for removal, where safe harbours are of no importance, but depending on the national law (as this is defamation), the question is whether Spanish law has injunctions also against innocent parties or it is necessary to establish the liability to receive injunctive relief.

    Quite lof of questions, I know 🙂

    Best,
    Martin

    • Miquel Peguera permalink*
      May 28, 2013 2:37 pm

      Hi Martin,

      Thanks for such a long comment!

      This is the first ruling that deals with the actual knowledge in the context of linking, and it looks like the Supreme Court is applying the same notion than in the hosting context. This may or may not be warranted, but, after all, both provisions (hosting and linking safe harbors) use exactly the same language to define what actual knowledge is.

      The standard of actual knowledge relates to the illegal nature of the content. In the previous rulings, the illegal character of the content was obvious in itself (according to the Court), as it consisted of clearly derogatory expressions and defamatory statements. Thus the question was simply whether the provider knew about the fact that he was hosting such content.

      In this case, however, the pieces of news referred to the fact that the claimant was involved in political corruption, which turned out to be false. Thus, while the aggrieved person did notify Google claiming that the content was false, Google couldn’t actually know that for a fact without a court ruling declaring it, or so says the Court.

      I agree with you that failing to meet the safe harbors doesn’t necessarily mean that you are going to be liable, but I am afraid that the Court somehow makes the direct link.

      I don’t know whether the plaintiff requested an injunction to remove the content, but in any event it would have become moot, as Google removed the links when the complaint was filed.

      Best,
      Miquel

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