Ed. Note.: This post, by Sayan Bhattacharya, is a part of the NALSAR Tech Law Forum Editorial Test 2016.
Search engines which are quintessential to our internet experience are mechanisms of indexing and crawling through data to provide us with a list of links which are most relevant to both our present and past searches. Figuratively, its functions range from directing users to seats in a movie hall to being the very seat in the movie hall.
Tonnes of data lie a click away thanks to these third parties.The question then evolves surrounding the huge quantity of data and the ethics of its presentation to users lying at the mercy of private entities which almost enjoy an unquestionable monopoly in this regard. To what extent this can it be held liable for the data it presents? This article seeks to deal with the following legal issues surrounding holding search engines liable for:-
- Copyright infringement of individuals
- Defamatory Content in search results
- Autocomplete suggestions: Affecting freedom of speech, privacy and personality of individuals.
COPYRIGHT INFRINGEMENT BY SEARCH ENGINES
The problem with extending liability to these search engines on a principal level lies with them being third party content providers and not the original publishers breaching copyright standards. A debate of search engines being publishers or a mere link provider to publishers ensues since search engines after the initial search entry by the user happen to filter relevant data from its already present resources. Therefore they do have some amount of publishing nature in determining what is relevant and what is not however neutral the algorithms might be. But imposing liability for merely linking users to data irrespective of its legality is problematic.
Copyright laws have been trying to bring back fairness in online searches to provide a checks and balances mechanism to curb presence of plagiarised content to protect rights of initial publisher of being sole distributors of their work. The aim at providing laws which balance both a free information environment and protection of rights of the copyright holder. Courts across Europe have held these search engines liable for inducement of copyright infringement in several cases.
Recently European Parliament came up with its single digital market and copyright reforms which requires digital content providers who give access to large amount of copyright protected data to provide protection using technology. It also requires them to provide copyright holders with functioning of such checks and balances system. This law becomes problematic on two levels:-
- A law requiring control of ‘Large amount of copyrighted data’ seems pretty vague since no applicable threshold is established by these reforms as to what constitutes large amount of copyrighted data
- The protection of such data using technology probably refers to protection through filtering illegal content. This is problematic in the sense that not all data which breaches copyright standards be detected and neither does it apportion any kind of responsibility to search engines as to what standard of precautions are to be adopted.
Courts in the case of this issue have been more rational in its apportioning liability to search engines as compared to copyright issues.The debate has majorly been surrounding whether search engines are mediums or publishers. In 2009, Metropolitan International Schools Limited brought a defamation case against Designtechnica Corporation, Google UK Limited, and Google Inc which provided a distinction between search engines and other internet based entities and set the precedent for future search engine related cases.
The court held that the search engine operators exercised no control over Designtechnica’s actions because a search yields a list of links determined relevant to the query. The technology ranks the pages in order of perceived relevance, without any form of human intervention thus excluding intent and knowledge factor; the search results to any given query depend on successful crawling, indexing, and ranking. The court held that a search engine is “a different kind of Internet intermediary,” which prevented the search engine from exercising complete control over the search terms and search results.
The most debated issue as regards to extending liability to search engines has come in the form of its autocompletion of searches wherein the major issue has been surrounding whether it predicts or orients users to specific data. First developed as a feature to assist physically disabled and slow people to increase typing speed, its use has now become ubiquitous and identifiable to search engines. The following are the issues surrounding the same:-
- Conveyance of misleading messages – For example when you search using the name of a business enterprise you might be linked to keywords like “fraud” or “dishonest”. It might end up revealing unwanted details about a person’s past. These searches might be contrary to what you are looking for and might even end up causing breach of privacy or discomfort.
- Uncompetitive Practices and Unfair Preference based linking: How often have you tried to search for a specific link but the first few links or most often majority of links on a search engine point to another link which is very dominant in the online market? An investigation by the Competition Commission of India has claimed that Google Inc allegedly “abused its dominance” in the Indian market by incorporating clauses in its agreements with users that restricted them from availing services of third-party search engines. A similar probe by the European Competition Commission showed that Google abused its dominant position in market to show “systematic favourable treatment” to its Google own ecosystem applications like Google maps. The counter argument to this is that obviously google searches work on neutral algorithms based on popularity and relevance. But in a research called the snowball effect in modern searches it has been seen that a suggested search indulges users’ curiosity and orients them towards searches that may hence influence in turn the algorithms.
The extension of liability in this regard even though seems perfectly legitimate becomes problematic on a principle level. Search engine algorithms are finally codes written by human beings. At the end of the day like every business enterprise, search engines might have its own set of priorities and preferences. Even if users may expect that Google presents the results on the basis of supposedly ‘neutral’ algorithms, ‘Google has never given up its right as a speaker to select what information it presents and how it presents it’
We’ve dealt with and contrasted individual rights of search engines and societal rights, business ethics and freedom of expression and rights and duties of search engines in terms of specific issues which calls for a checks and balances system. This article talked about how there needs to be a balance between the above mentioned criteria.
An important phenomenon of these search engines which this article talked about in the very beginning is that of monopoly. The very fact that most of us resorting to find data on the world wide web would ultimately resort to Google for links irrespective of copyright breaches, defamation and unfair trade practices shows the dominating power of Google which hardly changes despite use of unethical trade practices by it or through it.
The fact remains that if anyone can solve the existing illegal practices in the world of internet and restore fairness then that is these search engines due to its monopoly and extreme bargaining power over the content displayed. Therefore is it then legally correct to extend search engine liability for misuse of data on their platforms because of this being the only mode of control?