"Really interesting case. For those allergic to legalise, the Guardian has a report on the outcome.
My conclusions on publication
- I turn to what seems to me to be the central point in the present application; namely, whether the Third Defendant is to be regarded as a publisher of the words complained of at all. The matter is so far undecided in any judicial authority and the statutory wording of the 1996 Act does nothing to assist. It is necessary to see how the relatively recent concept of a search engine can be made to fit into the traditional legal framework (unless and until specific legislation is introduced in this jurisdiction).
- It has been recognised, at common law, that for a person to be fixed with responsibility for publishing defamatory words, there needs to be present a mental element. I summarised the position in Bunt v Tilley at -:
"21. In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant's words) responsible for 'corporate sponsorship and approval of their illegal activities'.22. I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn  AC 549, 562: 'A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish'. In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that 'publication'.23. Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354, 357, per Lord Esher MR.)"
The passage to which I referred in Emmens v Pottle concerned defendants who were said by the Master of the Rolls to have been prima facie liable, on the basis that they had handed to other people the newspaper in which there was a libel on the plaintiff...
- When a search is carried out by a web user via the Google search engine it is clear, from what I have said already about its function, that there is no human input from the Third Defendant. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programmes.
- When a snippet is thrown up on the user's screen in response to his search, it points him in the direction of an entry somewhere on the Web that corresponds, to a greater or lesser extent, to the search terms he has typed in. It is for him to access or not, as he chooses. It is fundamentally important to have in mind that the Third Defendant has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user's request unless it has taken some positive step in advance. There being no input from the Third Defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user's screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.
- The next question is whether the legal position is, or should be, any different once the Third Defendant has been informed of the defamatory content of a "snippet" thrown up by the search engine. In the circumstances before Morland J, in Godfrey v Demon Internet, the acquisition of knowledge was clearly regarded as critical. That is largely because the law recognises that a person can become liable for the publication of a libel by acquiescence; that is to say, by permitting publication to continue when he or she has the power to prevent it. As I have said, someone hosting a website will generally be able to remove material that is legally objectionable. If this is not done, then there may be liability on the basis of authorisation or acquiescence.
- A search engine, however, is a different kind of Internet intermediary. It is not possible to draw a complete analogy with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet: there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that the Third Defendant has authorised or acquiesced in that process.
- There are some steps that the Third Defendant can take and they have been explored in evidence in the context of what has been described as its "take down" policy. There is a degree of international recognition that the operators of search engines should put in place such a system (which could obviously either be on a voluntary basis or put upon a statutory footing) to take account of legitimate complaints about legally objectionable material. It is by no means easy to arrive at an overall conclusion that is satisfactory from all points of view. In particular, the material may be objectionable under the domestic law of one jurisdiction while being regarded as legitimate in others.
- In this case, the evidence shows that Google has taken steps to ensure that certain identified URLs are blocked, in the sense that when web-crawling takes place, the content of such URLs will not be displayed in response to Google searches carried out on Google.co.uk. This has now happened in relation to the "scam" material on many occasions. But I am told that the Third Defendant needs to have specific URLs identified and is not in a position to put in place a more effective block on the specific words complained of without, at the same time, blocking a huge amount of other material which might contain some of the individual words comprising the offending snippet.
- It may well be that the Third Defendant's "notice and take down" procedure has not operated as rapidly as Mr Browne and his client would wish, but it does not follow as a matter of law that between notification and "take down" the Third Defendant becomes or remains liable as a publisher of the offending material. While efforts are being made to achieve a "take down" in relation a particular URL, it is hardly possible to fix the Third Defendant with liability on the basis of authorisation, approval or acquiescence...
- Against this background, including the steps so far taken by the Third Defendant to block the identified URLs, I believe it is unrealistic to attribute responsibility for publication to the Third Defendant, whether on the basis of authorship or acquiescence. There is no doubt room for debate as to what further blocking steps it would be open for it to take, or how effective they might be, but that does not seem to me to affect my overall conclusion on liability. This decision is quite independent of any defence provided by s.1(1) of the 1996 Act, since if a person is not properly to be categorised as the publisher at common law, there is no need of a defence: see e.g. Bunt v Tilley at .
The ultimate outcome
- In conclusion, therefore, there are two reasons which in my judgment justify setting aside the Master's order. First, I do not consider that on the evidence before me the Third Defendant can be regarded as a publisher of the words complained of, whether before or after notification. Accordingly, on the evidence before me, I can conclude that the Claimant would have "no reasonable prospect of success". Secondly, I regard the misrepresentations and omissions, as to the nature of the cause of action relied upon, as sufficiently serious to justify setting aside the Master's order in any event."
Friday, July 24, 2009
Shades of Apple v Real, Apple v Ambrosia, Apple v competition...
Update: Palm have updated their software so iTunes now talks to the Palm Pre phone again, just as Real did... how long will it take Apple to react to make it incompatible again? The Washington Post also has the story.
Update: James Grimmelmann has just launched a new site, the public index, for discussion of the Google Book Search case, including a fairly comprehensive archive of litigation documents and analytical articles. It's along the same lines as writetoreply triggered by the draft Digital Britain report with a collection of extra resources. Again recommended.
Update 2: Pamela Samuelson's succinct take on the problems with the settlement.
"He was trying to light his shoe. The flight attendant, aided by passengers, acted quickly. Richard Reid never got another chance to light his shoe bomb.I also learned from the article that the United States v. Reynolds was the first time the US government successfully used the "national security" argument before the courts to prevent the release of privileged information.
Thanks to the immediate action of the the those on board, there was no damage to the plane. No injuries or loss of life.
Since that day in 2001, every passenger entering a commercial airliner has been required to remove their shoes for inspection and X-ray. A precaution that is... massively, even breathtakingly idiotic...
Assume that each airline traveller spends an additional minute in line because of removing, scanning, and replacing their shoes. Just one minute. In the United States, there are about 830 million domestic airline passengers a year. That's about 1,600 man years of time spent each year on removing shoes that are no more threat than any other piece of clothing. If you put a $10/hr value on the time of the average air traveller, that's about $33 million / year worth of shoe time. Better than $300 million worth since Reid got tackled in business class.
Which has to make Reid and those like him very, very happy...
The bigger reason we did something is because the response of politicians is always to do something. Even if that something makes no sense -- even if that something is actually counterproductive... When politicians see something on the news, and when pundits are screaming for action, the inclination is to provide that action. If that means a million gallons of Head n' Shoulders in airport trash cans or a life sentence for stealing a pizza, so what? What counts is that action was taken.
Dave Kilchen in his new book The Accidental Guerrilla describes terrorism in the terms of an auto-immune disorder. Like lupus, where the systems of the body designed to protect against infection turn on healthy tissue, our response to problems can often result in far more damage than the problem itself. It's not the terrorists that do the real damage -- it's how you respond to the terrorists... The self-inflicted wounds have been deeper, more serious, and more lingering than anything that was done from the outside."
"A military aircraft on a flight to test secret electronic equipment crashed and certain civilian observers aboard were killed. Their widows sued the United States under the Tort Claims Act and moved under Rule 34 of the Federal Rules of Civil Procedure for production of the Air Force's accident investigation report and statements made by surviving crew members during the investigation. The Secretary of the Air Force filed a formal claim of privilege, stating that the matters were privileged against disclosure under Air Force regulations issued under R. S. 161 and that the aircraft and its personnel were "engaged in a highly secret mission." The Judge Advocate General filed an affidavit stating that the material could not be furnished "without seriously hampering national security"; but he offered to produce the surviving crew members for examination by plaintiffs and to permit them to testify as to all matters except those of a "classified nature." Held: In this case, there was a valid claim of privilege under Rule 34; and a judgment based under Rule 37 on refusal to produce the documents subjected the United States to liability to which Congress did not consent by the Tort Claims Act. Pp. 2-12."
"The best way to control people, as any competent dictator will know, is to get them to police themselves. No citizen is more comprehensively cowed and disempowered than one who believes himself to be at the mercy of other ordinary people. Britain, not a totalitarian state, is nonetheless on a steep learning curve when it comes to the first rule of suppressing individual liberty: everyone should be watched and everyone should be a watcher...Nothing to hide nothing to fear... cough... expenses scandal... cough... and they still don't get it. And until MPs en masse and ministers in particular start repeatedly personally feeling the effects of the mass surveillance society they've been building I doubt there will be a reversal in proceedings any time soon. Externalities Mr. Balls, externalities.
These contracts between parents and the school of their child will commit them to supporting his or her education, ensuring that they attend school, do their homework, go to bed at a reasonable time and so on. Then, almost as an afterthought, the new agreement will also invite parents to spy and inform on families which they believe are not adhering to the agreement. Complaints made by families against families will be heard by Local Education Authorities. It is a neat way of exploiting the suspicion and paranoia which have become part of the British character. Citizens will become the unpaid spies of authority.
Ed Balls, the secretary of state behind the initiative, has made the usual appeal to decency and commonsense. The agreement will support "parents who do the right thing" and bring to justice a small minority of "recalcitrant" families. He might have added that, if you have nothing to hide, then you will have nothing to fear."
Thursday, July 23, 2009
"UK government plans to restrict the Internet have become clear. And how it is using the Telecoms Package to launder policy through Brussels. Without Amendment 138, the Telecoms Package would offer no obstacle to Internet filtering, blocking peer-to-peer file-sharing, or restrictions on any other web-based service or application.(COERPER is the Permanent Representatives Committee responsible for preparing the work of the Council of the European Union).
The UK government's peer-to-peer consultation has slipped on a virtual banana skin and in the process let its Internet restrictions plans jump right out of the bag.
The consultation has printed a version of Amendment 138 in the EU Telecoms Package using a wording hitherto unknown: it includes the words ‘or for other legitimate reasons' which would give governments the get-out clause they need to apply 3-strikes andother sanctions to Internet users. This wording is not in the text that was adopted by the European Parliament on 6th May. Neither is it familiar to me, and I have seen several of the unofficial proposals for re-writes.
Amendment 138 says that the fundamental right to freedom of expression on the Internet may not be restricted without a prior judicial ruling. It seeks to stop anti-filesharing measures such as 3-strikes /graduated response, and arguably also prevents network filtering being used to block websites and user connections without a judicial ruling. But the changed wording in the Consultation on legislation to address illicit peer-to-peer filesharing, run by the Department for Business, Innovation and Skills, implies that the judicial ruling would not be needed provided the reason for imposing the measure was 'legitimate', and so it gives the UK government, and governments all around the EU, the go-ahead to implement the kind of measures to restrict the Internet that are foreseen in the Telecoms Package Universal Services and Users rights directive (Harbour report).
The matter has been documented by the 1709 Copyright Blog ( which, incidentally, is written by lawyers). The 1709 Copyright Blog says that the consultation document could imply that the UK anti-filesharing plans are not out of synch with EU. The final text of Amendment 138 was known well before the June 16th publication date of the consultation, and that since it is such a political hot-potatoe, BIS should have proof-read the document and got it right. And it comments that Amendment 138 is a thorn in the UK government's side, because it would prevent them from requiring ISPs to cut off -filesharers or use ‘technical measures' to prevent them accessing file-sharing sites.
In other words, Amendment 138 will indeed ‘constrain policy options' as the UK's representative on COREPER, Andy Lebrecht, wrote in his briefing statement for the Minister , Lord Stephen Carter, presented in the House of Lords. "
If this really is the plan of some of the folk in BIS, it's potentially worse than even the French 3 strikes legisation which was ruled unconstitutional (at least the French had built in a semblance of judicial oversight).
The question that springs to mind is whether there really are machiavelian moves by music label friendly elements within the BIS to bypass amendment 138 of the European Parliament's telecoms package or whether this is down to bureaucratic errors on the part of the department. The BERR (as the BIS was then) officials that attended the OII's Musicians, fans and online copyright event in March 2008 gave every indication of understanding the complexities involved in attempting to regulate illicit file sharing but of course understanding at the level of the individual doesn't always translate into understanding at the level of the organisation. And it wouldn't be the first time the government interpreted EU legislation to suit themselves.
Wednesday, July 22, 2009
"call centre staff in South Africa and the Philippines...
A source at the company has told the BBC that the vast majority of messages are in fact converted into text by staff at call centres.
The fact that messages appear to have been read by workers outside of the European Union raises questions about the firm's data protection policy.
The firm's entry on the UK Data Protection Register says it does not transfer anything outside the European Economic Area."
"This brief statement is being submitted on behalf of my client, friend, and colleague, Professor Henry Louis Gates, Jr. This is a statement concerning the arrest of Professor Gates. On July 16, 2009, Professor Henry Louis Gates, Jr., 58, the Alphonse Fletcher University Professor of Harvard University, was headed from Logan airport to his home [in] Cambridge after spending a week in China, where he was filming his new PBS documentary entitled “Faces of America.” Professor Gates was driven to his home by a driver for a local car company. Professor Gates attempted to enter his front door, but the door was damaged. Professor Gates then entered his rear door with his key, turned off his alarm, and again attempted to open the front door. With the help of his driver they were able to force the front door open, and then the driver carried Professor Gates’ luggage into his home.
Professor Gates immediately called the Harvard Real Estate office to report the damage to his door and requested that it be repaired immediately. As he was talking to the Harvard Real Estate office on his portable phone in his house, he observed a uniformed officer on his front porch. When Professor Gates opened the door, the officer immediately asked him to step outside. Professor Gates remained inside his home and asked the officer why he was there. The officer indicated that he was responding to a 911 call about a breaking and entering in progress at this address. Professor Gates informed the officer that he lived there and was a faculty member at Harvard University. The officer then asked Professor Gates whether he could prove that he lived there and taught at Harvard. Professor Gates said that he could, and turned to walk into his kitchen, where he had left his wallet. The officer followed him. Professor Gates handed both his Harvard University identification and his valid Massachusetts driver’s license to the officer. Both include Professor Gates’ photograph, and the license includes his address.
Professor Gates then asked the police officer if he would give him his name and his badge number. He made this request several times. The officer did not produce any identification nor did he respond to Professor Gates’ request for this information. After an additional request by Professor Gates for the officer’s name and badge number, the officer then turned and left the kitchen of Professor Gates’ home without ever acknowledging who he was or if there were charges against Professor Gates. As Professor Gates followed the officer to his own front door, he was astonished to see several police officers gathered on his front porch. Professor Gates asked the officer’s colleagues for his name and badge number. As Professor Gates stepped onto his front porch, the officer who had been inside and who had examined his identification, said to him, “Thank you for accommodating my earlier request,” and then placed Professor Gates under arrest. He was handcuffed on his own front porch.
Professor Gates was taken to the Cambridge Police Station where he remained for approximately 4 hours before being released that evening. Professor Gates’ counsel has been cooperating with the Middlesex District Attorneys Office, and the City of Cambridge, and is hopeful that this matter will be resolved promptly. Professor Gates will not be making any other statements concerning this matter at this time."
Monday, July 20, 2009
"If climate change is "a greater threat than terrorism,"should governments criminalize "the glorification of travel" and pass laws against "advocating acts of consumption"?McKay's book, Sustainable Energy -without the hot air, is absolutely terrific, and something of a template for the other book I've been vaguely contemplating on the sustainability of ideas in the context of the modern structure of the intellectual property landscape. Empirical numbers are very difficult to come by when it comes to IP, however, so that's a project for the slightly longer term.