You’re Liable To Be Sued For Libel In Australia Despite Not Actually Committing It

That’s the case for Google and potentially other major search providers according to Judge David Beach. The Supreme Court of Victoria ruled in favor of the Plaintiff, Milorad Trkulja, in a move that mirrors an earlier precedent involving the same man and Yahoo. His complaint was that some of the results in Google’s search results were libelous in their nature since it showed results of websites that claimed his unsolved case of getting shot in the back to be of mob origin. He has been awarded (in Australian currency) $200,000 (that’s equivalent to $208,000 American dollars) from Google and $225,000 from Yahoo.

What’s The Difference Between DMCA Takedown Request, Libel and Child Porn Laws?

Child porn is something that is identifiable outside of the course of a legal conclusion. It can objectively be found, censored and isn’t up for much legal debate outside of someone discovering the baby pictures from caring parents. It’s plainly stated law and must be followed, thus Google and every other legal search provider censors child pornography. It’s not open for much if any interpretation and is dealt with very seriously.

DMCA Takedowns are requests from copyright holders to have content removed. It’s a law that is formally known as the Digital Media Copyright Act. Google and other hosts of various content, whether its’ only indexing, tracking or actual hosting, have to comply with this act. It places the burden of discovery and notification upon the content owners and those that represent them. Anything beyond that, like the audio checking from Youtube for auto takedowns, isn’t legally needed. Compliance with copyright holders is the portion that is mandated.

Libel is a part of the law that pretty much needs to be concluded upon legally throughout the world. The factors for proving it may differ based upon your location in the world but in the end it’s rarely a matter of objectivity. It’s normally subjective. That’s why Google had to go to court in Australia. That’s why the ruling is pretty much disastrous to how search and most of the open web operates. Will Google be required to remove everything that a person finds offensive in a libelous manner in Australia now or be forced to pony up cash in court? Libel is incredibly subjective. What can be considered defamtion of character for one person could be viewed as the plain truth/facts for another.

DMCA is different from libel/defamation. Normally in order to be guilty of the latter you’d need to have produced the content yourself or have published it in some form. Australia is viewing Google’s results as a form of publishing. I can understand how the court has come to its’ inclusion of search results as the modern day anagram to publishing. It is done by an algorithm but Google provides access to to it displays/publishes the results. The main difference here being that Google does not choose what we search for or curate it in a way that’s comparable to print. Google and nearly all web search is curated by the user via their choice of search terms, that’s the reason that I believe that Google and other search providers shouldn’t be held responsible in this case.

Our pc’s can be used to pirate, steal and even publish defaming information but IBM, Intel and nearly any other developer/oem isn’t held responsible for what we do with it. Students are considered to be cheating while using a calculator or Wolfram Alpha, not TI or Wolfram themselves. Google indexes the open web and makes it easy to find search results. They make money off of indexing it but they aren’t curating it in any way outside of making search easier to perform for its’ users. What the Supreme Court (Not the High Court) in Australia has sanctioned today would be equivalent to them holding libraries liable for the content in their Dewey Decimal System based Index, not the books themselves. That is the dangerous, unsettling portion of what this ruling in Australia has brought to us today.

What Else Is There To Know?

I’m nowhere close to being a legal expert but somehow this judgment just doesn’t sit right with me. The expectations of Judge Beach is to make the archiver responsible for the content of the archives. Not only that, but the archiver is to be held responsible when they don’t own the archives and are only indexing it and making that index available for public use. Google may do a lot of questionable things but the core of their business, basic web searching, is not one of them.

Chilling Effects

Check out chillingeffects.org, it’s a public database for DMCA takedowns.

Recently a woman with questionable judgment made harsh statements about our recently re-elected President, Barack Obama. I can find that statement via a Google search. I can even see it as part of some of the summaries. The CIA isn’t investigating the company for possible trouble. I’m pretty sure that I could perform similar searches for many Australian figures and find digitally modified pictures of them in displeasing situations, some form of slander and libel against nearly anyone of note and many other things that could potentially be against their laws.

It should be the content creator, not the indexer, that should be held responsible in these cases. Google search can be used to make finding these things easier but in the end you have to purposely choose to search for these items. Not only that but scrubbing the site from Google doesn’t scrub it from the web. It seems like the epidemic of people not knowing the true purpose of a web browser and an address bar will never disappear from the world, I just hope that web browser developers don’t ever become responsible for the content that people search for on the web using them. The ruling in Australia is just one step towards the slippery slope of such a thing happening there.

If our current connected world existed during the time of the Watergate scandal, I’m almost certain that Richard Nixon would have sued Google to try to bury search results leading to web stories about what he participated in. Now Google would not have published the content provided by Deepthroat but there almost certainly would have been hundreds, if not thousands of online articles and discussion about Nixon being guilty. As he famously said “I am not a crook!”, he would have fought this long and hard.

How does this affect you in Australia? Well apparently you can get a few buddies to setup a free WordPress blog – like this one – have them place up horrible things about yourself then sue Google for 208,000 Australian dollars if they refuse to remove those sites from general searches about yourself. See, isn’t wonderful that we can see the potential abuse, err opportunity from this piece of legislation already? DMCA requests are already arguable for being abused. Microsoft places hundreds of thousands of requests for Google for many items that are questionable yet leaves the same items indexed in its’ own Bing search engine. That could be seen as purposely trying to harm a competitor in an unfair manner. The purpose of DMCA was to protect the rights of copyright holders.

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