Court ruling a small step in closing Google’s ’gateway to harm’

Defamation Law /
Howard Winkler
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By Paul Russell, LegalMatters Staff • A recent Federal Court decision has brought Google one step closer to being held accountable for the defamatory material it links to on the internet, though there is a simpler way the same result could be achieved, says Toronto defamation lawyer Howard Winkler.

“I still don’t think we’re at a point where there is an efficient, effective remedy available to people who have been defamed through the services of Google, whether it be through search results, snippets or libellous content that it republishes,” says Winkler, principal and founder of Winkler Law.

“But we’re heading in the right direction, and the courts seem to be following a path which may eventually achieve that result,” he tells LegalMattersCanada.ca.

Winkler points to a July judgment of the Federal Court, which relates to a man’s claim that “news articles Google displays in its search results contain outdated and inaccurate information and they disclose sensitive information … [and] the fact that Google prominently links these articles to his name in search results has caused, and continues to cause him, direct harm, including physical assault, lost employment opportunities and severe social stigma.”

Defamatory links given when name searched

At the suggestion of Daniel Therrien, Canada’s Privacy Commissioner, the man requested that Google remove the defamatory links that are given when people search for his name “but Google declined to do so,” the judgment reads.

Court documents note that in “January 2018, the Commissioner published a Draft Position Paper on Online Reputation expressing the view that, in certain circumstances, PIPEDA [the Personal Information Protection and Electronic Documents Act] applies to search engines like Google. A consequence of PIPEDA’s application would be that Google might be required to remove links to content containing personal information.”

To aid in his investigation of the man’s complaint, the commissioner asked the Federal Court to rule on two key points:

  • Does Google collect, use or disclose personal information in the course of commercial activities within the meaning of PIPEDA when it indexes web pages and presents search results in response to searches of an individual’s name?
  • Is the operation of Google’s search engine service excluded from the application of PIPEDA because it involves the collection and use of personal information for “journalistic, artistic or literary purposes and for no other purpose?”

“Respectively, the court responded with a yes and no to those questions,” says Winkler. “This decision won’t solve the problem of online defamation by itself, but it’s one more piece of the puzzle.”

 Jurisdiction to consider the complaint

He explains the court’s decision simply gives the privacy commissioner jurisdiction to now consider the complaint against Google.

“We will have to wait for the investigation of the complaint and the ultimate decision to see what remedies Mr. Therrien thinks he has available to him and specifically whether he can make an order that Google delist certain search results which are found to be false and by extension, harmful and defamatory,” says Winkler.

It’s also unclear whether Google will appeal this decision, he says, adding “it would be surprising if it doesn’t, but perhaps it is just intending to wait to defend the complaint and hope to succeed on the merits.”

Winkler says he hopes that as a result of this decision and other pressure Google will feel compelled to voluntarily alter its business model, to “better balance freedom of expression and the right of one to protect their reputation.”

Google is the ‘gateway to harm’’

“Right now, Google is at the far extreme of freedom of expression, without any respect or regard for the protection of reputation,” he says. “That is why I describe Google as being the gateway to harm.”

Winkler notes that both the courts and Canadian legislatures are trying to address online defamation, but reform has been slow.

“This is the first court case, from a privacy perspective, aimed at remedying the harm created by Google,” he says. “Its current policies allow for unfair harm to a person’s reputation, which can be immediate and devastating.”

Winkler points out the plaintiff started legal action in 2017 and is still waiting for some tangible results.

“With the current delays in the privacy commissioner’s investigations and its lack of remedial powers, the harm is done and likely permanent for the complainant,” he says.

‘Google can’t suck and blow’

Winkler says Google has taken contrary positions when it comes to defamation and privacy. He explains that when it comes to defamation, “Google argues that it is not a publisher and therefore not liable for the content its search engine promotes. However, in the privacy context, in order to be exempt from the provisions of the Privacy Act, it argues that it is involved in an act of journalism.

“Although the concepts of being a publisher and journalism might be different, they are close enough,” says Winkler. “Google can’t suck and blow. It can’t say for the law of defamation that it is not a publisher, and then say for the law of privacy that it is involved in a journalistic endeavour.”

In answering the second question posed by the privacy commissioner, the Federal Court judgment notes: “The primary purpose of Google’s search engine service is to index and present search results. This is not a primarily journalistic purpose because although it may facilitate access to information, it contains no other defining feature of journalism, such as content control or content creation. Even though Google returns some journalism in its search results, its search results clearly extend beyond journalism.

“In sum, Google’s search engine service does not operate for a journalistic purpose at all, or at least it does not operate for an exclusively journalistic purpose,” the ruling states.

Ruling has left the door open

“This ruling has left a door open,” says Winkler. “While Google was found not to operate for a journalistic purpose for the purposes of privacy legislation, it could be a publisher in other respects.

Instead of relying on the courts for a remedy to online defamation, he says the provincial government should, as a first and important step, simply adopt the takedown provisions recommended by the Law Commission of Ontario in its 2020 report, Defamation in the Internet Age.

Under this system, if an alleged fake or defamatory review of or post concerning a person or a firm is posted, the slighted party can electronically advise Google of their objection, he says. Google would then inform the original poster of the objection, and give them a set and short period of time to respond. If they fail to respond the post is taken down. This would quickly remove low value speech from the Internet.

Google conducts ‘70-75% of all internet searches’

Winkler says he is pleased that Google was specifically targeted in this case, considering its dominance among search engines. As noted by the judgment, some estimates suggest “it is used to conduct 70-75% of all internet searches globally. According to Google, its search engine is used to conduct millions of searches each day … Google’s parent company reported that it earned approximately $63.5 billion (USD) from Google in the first half of 2018 alone.”

“Any ruling against Google would apply equally to other search engines,” says Winkler. “Google obviously is the right precedent case. Its dominance in controlling access to content on the Internet is why I call Google a gateway to harm. What people are complaining about, in terms of false and defamatory material, is only happening because Google is making this false and defamatory information available and refusing to take it down when notified about it.

“What’s important about this case is that in the absence of legislation, which exists in the European Union, this is potentially the start of a Canadian right to be forgotten,” he adds. “And the real question is why do we need to wait for the slow process of a privacy commissioner’s investigation and decision when the government could simply enact legislation it deems is in the best interests of all?”