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Monday, 1 April 2013

Is Google liable for Autocomplete results? Italian court says 'no'


Google's April Fool scratch doodle 
Can Google be liable for content displayed on its Autocomplete service? 

This question has been raised quite often and a bit everywhere in the past few years.

As Kate reported some time ago, courts in Germany, France, Japan, Argentina, Ireland, and Italy (just to name but a few) have been asked to determine whether a provider like Google can be considered liable for potentially defamatory terms associated with a particular term searched for on its platform.

There is probably no need to recall how Autocomplete works, but here's a short explanation from Google itself:

Autocomplete involves the program predicting a word or phrase that the user wants to type in without the user actually typing it in completely ... As you type within the search box on Google, Autocomplete helps you find information quickly by displaying searches that might be similar to the one you're typing. 

For example, as you start to type [ IPKat ], you may be able to pick searches for other IPKat-related search queries:




But does Google monitor the autocomplete results? Nope!, says the internet giant:

Autocomplete predictions are algorithmically determined based on a number of factors (including popularity of search terms) without any human intervention. Just like the web, the search queries presented may include silly or strange or surprising terms and phrases. While we always strive to reflect the diversity of content on the web (some good, some objectionable), we also apply a narrow set of removal policies for pornography, violence, hate speech, and terms that are frequently used to find content that infringes copyrights.

Merpel is unsure whether this is an
April's Fool joke
or her belated Easter bunny costume ...
Despite this, there are judicial instances in which Google has been found liable for the results displayed on its Autocomplete service.

Among other things, in 2011 the Tribunale di Milano (Milan Court of First Instance) held Google liable for some Autocomplete's libellous search suggestions. The facts which had given rise to this dispute involved Google's Autocomplete and ‘related searches’ services offering to complete the plaintiff's name with terms like "crook" ("truffatore") and "scam" ("truffa"). The Milan Court found that such defamatory content was something that Google had contributed producing, since this was to be considered as tantamount to a content provider.

However, an ordinanza (interim injunction) of the same court on 25 March last shows quite a different approach to the issue of Google’s liability for its Autocomplete service (here and here).

... In any case she's glad
it does not look
like Patrick's work uniform
This is another case in which Autocomplete and ‘related search’ results included terms which the plaintiffs deemed defamatory. Following Google's removal of terms like “crook” and “scam”, there remained further allegedly libellous terms like "sect" (“setta") and "brainwashing" ("plagio").

Also in this case, the plaintiffs argued that Google is tantamount to a content provider, under the responsibility of which these controversial results are generated.

The judge rejected their claim and held that Google cannot be considered a content provider, but rather a caching provider. Its Autocomplete service merely reproduces the results of most popular user searches, and the ‘related searches’ service displays the results of indexed webpages made accessible by Google through search terms. In addition, being algorithmically determined, Autocomplete search terms and ‘related searches’ results are to be regarded as being neither tantamount to an archive, nor something which Google has structured, organised or influenced. 

In rejecting the plaintiff's application for an interim measure, Judge Angela Bernardini also recalled that - pursuant to Article 17 of Decreto Legislativo 70/2003 (which implemented Article 15 of the E-commerce Directive into Italian law) –, providers have no general obligation to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity, and that a duty to remove illicit information arises only following the request of competent judicial or administrative authorities. 

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