Canadian Court Says Google Isn't A 'Publisher,' Not Responsible For Defamatory Content Returned In Search Results

Legal Issues

from the because-duh dept

Slightly over a month ago, a Canadian court (British Columbia) issued a ruling that basically stated it could order Google to block websites globally. This nonsensical, overreaching order was issued on behalf of plaintiff Equustek Solutions, Inc., which hadn’t even originally named Google as a defendant. It wasn’t until Google appealed the decision that it was actually roped into the lawsuit. The court defended all of its stupidity by pointing out the real problem here was Google’s global reach, not the impossibilities and idiocy of its own decision.

For what it’s worth, another Canadian court has come down on the side of Google, choosing not to hold it responsible for returning search results plaintiffs don’t like.

Last month, Justice Lauri Ann Fenlon refused to force Google to block defamatory comments about a Vancouver lawyer, Glenn Niemela, from its global search results.

The British Columbia Supreme Court finds Google’s position as a search engine to be wholly unlike that of a “publisher.” This would be the sane view — the one not espoused by the Equustek decision.

The plaintiff has been fighting to remove allegedly defamatory content from the internet. Google, for its part, had voluntarily delisted several URLs from being accessed at Google.ca (but not elsewhere at other domains). That wasn’t good enough for Niemela, who wanted Google to remove them worldwide. This was despite the fact that Google wasn’t under any legal obligation to delist anything and despite the fact that Niemela had to perform a bit of search engine wrangling to even get the offending URLs to show up.

In the present case, Mr. Niemela has identified additional URLs but they appear to be pre-existing links buried deep in search results. For example, in his tenth affidavit sworn January 20, 2015, Mr. Niemela states:

2. On January 6, 2015 I did a Google search of “Glenn Niemela”.
3. I searched to the last page displayed on the search results. The last page was page 38. Page 38 has the following notation:

In order to show you the most relevant results, we have omitted some entries very similar to the 380 already displayed.
If you like, you can repeat the search with the omitted results included.

Attached hereto as Exhibit “A” to this my affidavit (pages 3 and 4 of this affidavit) is a copy of page 38.

4. When I clicked on the above notation on January 6, 2015 the search on “Glenn Niemela” expanded to 69 pages.
5. On January 14, 2015 twenty-two (22) defamatory snippets and an associated twenty-one (21) URLs are released on this second layer of Google searches.

Each page on Google’s search results contains 10 URLs, with the most relevant and useful at the top of the list. I take judicial notice of the fact that few searchers will be motivated to move through 380 search results on 38 pages to reach what Mr. Niemela describes as “the second layer”. In any event, Google has agreed to block those URLs as well, voluntarily removing them from google.ca.

But Niemela still wanted an injunction because he was convinced these buried URLs were still harming his legal practice. The court notes that 90% of the searches for his name originated in Canada, where all the “harmful” URLs are currently being blocked. It also notes that Niemela performs 100% of his legal work in Canada, which would make him particularly well-insulated against the contents of these posts.

Furthermore, it points out that there are limits to what the court can actually order a site to do in other countries. Niemela has issues with US search results, but the Supreme Court correctly notes (unlike the other BC court) that it can’t actually make Google do anything in the US.

Finally, the Court is reluctant to make an order that cannot be complied with. Mr. Niemela acknowledges that Google is not able to comply with an order compelling it to block defamatory search results in the United States. Two federal statutes, the Communications Decency Act of 1996, 47 USC (1996), and the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 USC (2010), protect internet providers such as Google and block enforcement orders that would infringe on the First Amendment right to free speech.

Among the other issues the court had with this particular case are the fact that Niemela sat on these “harmful” URLs for two years before bringing the lawsuit. Not only that, but he had failed to show any evidence that the existence of these URLs (and their accessibility from other countries) had actually harmed his current and future business prospects. Damningly, the court flat out states that Niemela is his own worst enemy, and that perfectly legal (and non-defamatory) detrimental information about him and his practice is easily accessible to anyone using Google from anywhere.

[W]hile Mr. Niemela attributes the decline in his law practice to the defamatory statements and their general accessibility through search engines such as Google’s, there are other possible explanations. A disciplinary history with the Law Society is prominently revealed in Google searches of “Glenn Niemela”.

Even if Niemela had put together a better case, it’s unlikely this particular court would have followed the other BC court into infamy by issuing an impossible, imprudent and likely illegal court order. The court found that “publication” is a necessary element of defamation, and Google — no matter its marketshare and global reach — is nothing more than a search engine.

Filed Under: canada, defamation, glenn niemela, global, intermediary liability, vancouver
Companies: google