The status of major Web platforms, such as social networks or Google, is the subject of constant debate, are they publishers, and therefore responsible for the content they distribute? Or just hosts? The Australian High Court ruled (pdf) on August 17 regarding Google. The American search engine cannot be held responsible for the content of a page present in its search results via an extract and a hyperlink.
Google cleared in defamation case
The web giant was being sued for defamation by a Melbourne lawyer. At the heart of the case: an old article from 2004, published by a local daily, The Age. This text, titled Underworld loses valued friend at court (The world of crime loses a valued friend in court), reports that the plaintiff was charged with conspiracy to commit murder and incitement to murder.
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The charge was withdrawn in 2005, not the article. In 2016, the lawyer discovered that by typing his name in the search engine he fell on this famous text. He had previously settled his dispute with the author of the text out of court and then turned to Google.
At first instance, the lawyer obtained satisfaction. A judge found that Google ” published the defamatory material because the provision of the search result contributed to the communication of the content of the Underworld article to the user, in that it assisted in its publication “.
The giant was ordered to pay a fine of around 28,000 euros. The decision was eventually overturned, by 5 votes to 2, by the High Court. She objected that Google failed to assist The Age in communicating libelous material contained in the Underworld article “. According to her ” providing a hyperlink in the search result merely facilitated access to the Underworld article and was not an act of participation in the two-way process of communicating the content of this article to a third party “. The highest Australian court has thus recorded Google’s hosting status.
How is it elsewhere in the world?
Ars-Technica points out that in the United States, Section 230 on decency in communications would have had a similar result, since it states ” no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider “. Perceived across the Atlantic as very, even too much, protective for the major digital platforms, the modification of this article is being discussed in Congress, without success so far.
In the European Union, the fate of the procedure initiated by the Melbourne lawyer would probably have turned out very differently. In a judgment of May 2014, the Court of Justice of the European Union arbitrated that European legislation on data protection grants a “right to be forgotten”.
That is to say the possibility of asking a search engine to remove a link if “inaccurate, inadequate, irrelevant or excessive” personal information is mentioned there.
This right to be forgotten, ardently fought by Google, has definitively and clearly entered into the law of the Old Continent via article 17 of the General Data Protection Regulations (GDPR) under the name of “right to erasure”. . It is now enough to fill in a form, then the search engine has one month to respond favorably or not. In case of disagreement it is possible to seize the CNIL or justice. What makes an Australian lawyer want to move?