Why You Can't Sue Google
The Reason Defamation Law Applies to News Sites, But Not News Search Sites, And What This May Mean For the Future

By JULIE HILDEN
julhil@aol.com
----
Tuesday, May. 25, 2004

As Google prepares for its Initial Public Offering, it's worth reflecting on a special advantage the law gives to it, and to other, similar search sites: Such sites are, in effect, immune from much of the liability risk a traditional publisher of news and other factual information faces.

For publishers of books, magazines, newspapers and the like, publishing, or even re-publishing, a false statement can trigger defamation liability. But, for reasons I will explain, the same is not true for search sites like Google.

Search sites can provide access to information that may be false, without worrying about the risk of a defamation suit. (No wonder, then, that Google's stock may turn out to be valuable; some of the value it will have doubtless comes from this special legal bonus.)

In this column, I will discuss what implications this may have for the future of news publications, on the Internet and off.

Why Google and Similar Sites Are Immune From Defamation Liability

Why is Google immune from liability?

The most direct reason is that a federal law -- which I have discussed in a prior column -- ensures that those who host, rather than author, speech on the Internet cannot be treated, for legal purposes, as having published it. As a result, they cannot be sued for defamation - or for any other tort that has publication as one of its essential elements.

The law protects message board owners, chat room hosts, bloggers who give others access to their blogs, and indeed, virtually anyone who allows material on their site, or provides access to material, that they do not themselves author. That includes Google and other search sites.

By contrast, as noted in an earlier column, the defamation liability risk of selection sites such as The Drudge Report -- that is, sites that offer collections of specially culled links to other sites -- remains uncertain. Someone who chooses a link may count as having published the material to which the link leads - and may be held to have the state of mind to be held liable for the choice. This argument has been used in the context of the Digital Millennium Copyright Act, as I noted in another column, and could be used in the defamation context, as well.

Why Immunizing Google and Similar Sites Makes Sense

Readers may then ask: Shouldn't we get rid of the law that granted Google immunity? The problem, however, is that the alternative may be worse.

It's important to realize that even without this law, Google probably would win any defamation suit brought against it anyway. A defamation claim requires not only proof of publication, but also proof of state of mind. And Google would virtually never have the state of mind required - or, indeed, any particular state of mind at all, with respect to a particular item that comes up in a given search. Since its searches work automatically, no one at the site would likely be aware that Google's search engine had displayed a particular false statement of fact.

Of course, if the site were specifically put on notice that it was displaying false, defamatory, or harmful information, that might be different - and Headline News stories that stay on Google News for a while might be different, too. But I am referring here to the typical, automatic Google search, of which no one at the site would be specifically aware--in the sense that, say, an editor or reporter is aware, when crafting, or choosing to publish, a story.

Given the excellent chance that sites like Google probably would be immune from defamation law anyway, the legal immunity that deems the site not a "publisher" begins to make a lot of sense -- for several reasons.

First, the immunity provides a bright line rule that prevents lots of frivolous suits from being brought. If Google is always going to win defamation suits in practice, then it might as well have a formal immunity from them, in order to conserve court resources.

Second, the immunity allows Google and other sites to edit their content at least a bit, without fearing liability. Prior to the federal law granting the immunity, sites were often afraid to edit what was posted there at all -- for fear of being deemed "editors" or "publishers" of the information, and therefore incurring liability.

The result was that they couldn't scan their postings even for nefarious, illegal material such as child pornography or child sex solicitation. Fortunately, the federal law's immunity freed these sites to get rid of objectionable materials in their chat rooms and on their message boards.

For all these reasons, changing the federal law granting Google and similar sites immunity is probably not a good idea.

The Status Quo on the Internet Already Favors Non-Traditional News Media

Assuming Google will retain its immunity for the foreseeable future, it's interesting to reflect on what the implications of this may be. As I have noted above, the immunity provides an advantage for sites like Google over traditional news media. But what could having this advantage mean in the future?

Before answering that question, it's important to note what the status quo already is - and how dramatically the Internet changed it.

Until the advent of the Internet, real-world journalists acted as the primary sorters of free speech in our society. Before being distributed widely -- through television or print -- every news story had to be vetted and approved by a reporter and, usually, an editor. It also had to be judged against a more or less consistent code of journalistic ethics, and against a legal backdrop derived from media, libel, and privacy law.

If publication of the information was risky, from a legal perspective, a company's attorneys would get involved -- seeking changes, or possibly cautioning against publication. And if the publication was later determined in court to be libelous, or a privacy violation, then usually some large media company incurred huge liability -- sometimes into the millions.

Understandably, a conservative view of what could be published, often derived from ethical considerations, prevailed. Frequently, these standards stemmed not only from ethics, but also from simple financial prudence: the fear of financial repercussions in the future.

Today, many news web sites are just as careful as their traditional newspaper counterparts. Some only publish material already vetted for print publication. Some employ lawyers for pre-posting review. And many worry about the verifiability of big stories, especially those that may be damaging to famous persons who could sue the corporation that owns the site for millions.

But other information and news web sites -- particularly those that are not corporation-backed -- are far less careful. And there's a good reason for that: The reality is that virtually anyone can post virtually anything on the Internet, without much real fear of liability.

Foreign-run websites may be effectively out of reach. Multiple postings may make it futile to proceed against any given site. And many webmasters, bloggers, and the like are either anonymous and/or judgment-proof -- that is, too poor to make a lawsuit worthwhile.

Thus, even as suits against illegal downloaders make news -- and result in settlements that are sometimes quite substantial from the point of the view of those who must pay them -- suits against illegal posters of information are notably few.

But an Internet posting isn't of much use if no one knows it's there. That, of course, is where search engines come in. Google relies not on its own editors, but on user popularity to determine which search results come up first. It operates on the reasonable assumption that a given searcher probably will want to see the same sites that prior searchers wanted to see.

As noted above, this automatic system means that Google does not incur the legal risk that a more traditional publisher does. Yet, at the same time, Google offers a selection function that gives searchers what it knows they are likely to be most interested in -- thereby serving the very same function that newspapers and other traditional media publishers seek to achieve.

Indeed, Google may tend to serve this function even better than traditional media. While newspapers and television programs have to predict what users will want to read or view; Google simply provides the most popular material directly, adjusting its popularity estimates in real time.

Increasingly, traditional, liability-fearing news publishing will have to compete with essentially liability-free search sites like Google. Google's addition of Google News to its array of offerings is probably only one step in a long journey, to exploit a clear legal and financial advantage that favors search engines and individual postings, over websites run by media corporations.

One Possible Future: A Decentralized News Service Without Risk of Liability

How might this legal advantage be exploited in the future? One possibility is that networks of independent writers may use Google to reach the public as efficiently as traditional media do - and without the liability risk traditional media undertake.

For instance, suppose, for a moment, that someone set up a loose linking of freelance writers across the country. Turf would be divided among the writers by agreement, according to geography or topic. Writers would be automatically paid a modest income by users who accessed their sites, but would individually remain more or less judgment proof.

No corporate entity would exist, with deep pockets for plaintiffs to go after. There would no central server that could be shut down. The network's articles could be automatically promoted through search sites such as Google, and reader interest alone would ensure their dissemination, because Google's formula would promote popular articles to the top of Google search results.

Couldn't that loose linkage of freelancers provide riskier - and often, more exciting -- coverage than a traditional media company? And couldn't the writers, as a group, collectively make greater profits because of the lack of need for lawyers, and the lack of liability risk?

It seems somewhat surprising -- given the prevalence of underground comic books and newspapers in the pre-Internet era -- that such an "underground" news service does not exist already. Perhaps bloggers' disinclination to limit themselves by geography or topic, to report "straight" news, or to ensure their content is accessible to strangers, is the reason.

At least for now, this kind of freelance network may be far off, or impracticable to organize. But the legal advantage of avoiding corporate-funded sites, and working through a combination of individual sites and corporate-funded search engines, will doubtless be exploited one way or another.

If Google's IPO is highly profitable, it should thank not only the ingenious designers of its search algorithms, but also the Congress that passed the law protecting it from being sued as a publisher of information.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

Ads by FindLaw