In 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