Defamation by Search Engines: Exploration of Algorithm and Accountability

Abstract

The legal debate on search engines’ liability in defamation for hyperlinks, automatically produced results, predictions and suggestions has been dominated by the issue of whether search engines are primary or secondary publishers. Orthodox common law is strict in liability for anyone who has participated in publication. The defence of innocent disseminator is available only to secondary publishers due to their lack of knowledge and control of the publication process. In the past decade, there were numerous defamation lawsuits against Google as a search engine. The well-rehearsed defence from Google is that the search results, predictions and suggestions are generated by algorithm. There is no mental element and no human input involved. The quest for search engines’ liability in defamation action has captured the empowering yet ambivalent role of algorithm in information society. An analysis of relevant judgments reveals that judges have been stretching the common law rules to impose or not to impose liability on Google. Interestingly, a study of legal cases also shows that judges are often torn between their sympathy to search engines as indispensable tools to modern life and their duty to apply legal doctrines faithfully. In analysing cases in New Zealand, Australia, and other jurisdictions on Google’s liability as a search engine in defamation lawsuits, this presentation argues that the common law approach on identifying a publisher’s duty is hardly adequate. Google is neither entirely active nor entirely passive, but rather interactive as a search engine. Rather than fixated on the role of search engines as publishers, we should bear in mind that the rationale behind defamation law is to strike the right balance between reputation protection and freedom of expression. Search engines as special intermediary processors have played a unique role in freedom of information. Accountability on search engines should be placed in the larger context of freedom of information and other defences in defamation action including qualified privilege.