Is loss of Google juice an actionable loss of reputation?
This is an odd question, but one I was prompted to think about today.
In the normal run of things, I don’t think I have a legal, enforceable right to a google listing. I certainly can’t think how I’d have a right to sue for a prominent listing.
A modern search engine listing is a result of a mathematical algorithm which takes into account a series of factual circumstances the most well known of which is the number and ‘quality’ of other web sites linking to your page or site. In the case of Google the exact makeup of this algorithm (known as PageRank) is a commercial secret.
Nonetheless, from what is known Google may reasonably argue that the listings do not represent a human being’s judgment or opinion of the quality of my site, but rather are automatically collated from an aggregate of other people’s opinions, as measured by the PageRank algorithim.
So whether I go up or down is a mathimathicaly defensible measurement of my position in the eyes of my peers, rather than in the eyes of anyone at Google. There is considerable US caselaw on this matter- Searchking Inc v Google, for example decided that the ranking qualified for the constitutional protections ensuring free speech.
However, there is a complication in this.
In Ireland, search engines rely on the defence of innocent dissemination to ensure that they do not become liable for defamatory material which they link to, cache or host.
This means that if I am defamed by Homer Simpson, and find that Google are hosting a copy of the defamatory statement on their system for people to access (either in the title, the small extract they show under the title of the page or in the Cached copy of the page as it appeared the last time their reader passed Homer’s website) I am not able to add the deep pockets of Google to the list of defendants.
They may successfully point out that they are not liable as, like ISPs, they were ‘mere conduits’ for the information. No human being in Google had been involved in making a decision to publish Homer’s defamatory claims against me.
To maintain a successful defence of ‘mere conduit’ the ISP, or search engine like Google, has a difficult balancing act to perform. Once they are alerted to a problem with a post or site, even by the vaguest or most unsubstantiated of complaints, they have to choose between acting to stop the disputed content being displayed or to assume potential liability for anything defamatory it contains or does not contain.
This is an uncomfortable position for ISPs and search engines. But one in which the prudent action would be to remove the disputed content- ideally while giving notice of same to the effected publisher if they have a contractual relationship, such as a hosting agreement.
But there is a final twist in the tale. If Homer takes umbrage at my actions to remove his site from Google’s index, or from public access altogether if I have complained directly to his hosting company or ISP, and can prove that (a) my claims that I had defamed him are false and (b) that such claims are such as to likely to lower me in the eyes of right thinking people then I myself have become liable for a claim under defamation.
But wait, you say, where have you published your claims and so exposed yourself to action by your foolish yellow enemy?
Simple: in my original communication to Google, or my ISP, where I stated that Homer was a defamer I defamed him to the recipients of the letter- let us call them Google for ease of reference. It will be understood that all such references will apply equally to ISPs.
The best corollary of this is the fact that a person providing an employee with a reference leaves themselves open to a claim of defamation if what they say is negative and demonstrably untrue.
Not only that, but a delisting from Google may have a catastrophic effect on the traffic flow, goodwill and sales or advertising income of a website or page. Where this comes about as a direct result of a false claim of defamation having been made, a claim by Homer for damages would be appropriate.
So, to answer the question I posed at the beginning- Is a loss of Google juice an actionable loss? The answer is -sometimes.
With thanks to
(2006) 24 ILT 156
THE LEGAL AND HUMAN RESOURCES ISSUES FOR EMPLOYERS PROVIDING REFERENCES—PART I : Tamie Kobayashi and Sam Middlemiss
(2005) 12(10) CLP 263
Liability of Internet search engines—Part II : Faye Bohan
This article is intended to provide a general overview of the issues discussed. You really oughtn’t rely on it for legal advice. Go and see a lawyer if you have a particular legal problem you need advice on.