Could Suggested Search Defamation Survive the CDA?

Henry Murphy Burgoyne, III's Internet Law Legal Blogs

Licensed for 18 years

Attorney in San Francisco, CA

“Suggested search defamation,” or “autocomplete defamation,”
lawsuits have overcome legal hurdles in at least a half-dozen other countries.
Is it a matter of time before we see one—and maybe a successful one—in the
United States? Or would the Communication Decency Act effectively immunize a
search engine from suggested search defamation liability?

Suggested search terms are those proposed by a search engine
in response to a user’s prior search query or queries. Often, such as in the
case of Google, suggested search terms appear as “autocomplete” suggestions, or
alternative endings to the user’s then-current search. Suggested search
technology has been lauded as a valuable tool that helps users find more
relevant and interesting content. That same technology, however, also has
caused controversy. Social interest groups have criticized Google and others
for suggesting search terms that are offensive, racist or discriminatory. 
Increasingly, individuals also have challenged suggested search terms—in
particular as supplied by autocomplete tools—that falsely suggest an
association between their names and criminal, immoral or other unsavory
behavior.

Courts in Germany, Japan, Australia, Italy and France have
permitted suggested search defamation, or autocomplete defamation, claims to
proceed. Then in early August, a Hong Kong court refused to dismiss a suggested
search defamation claim brought by movie mogul Albert Yeung Sau-shing against
Google. Yeung’s claim, which remains in litigation, is based on one or more
suggested search terms that juxtaposed his name and a reference to organized
crime. Among other arguments, Google had claimed it does not “publish” its
suggested search results. The Hong Kong court disagreed. Applying defamation
law not entirely dissimilar to that of the United States, the court concluded
that “any person who takes part in making the defamatory statement known to
others may be liable for it.” 

The Yeung case received relatively heavy coverage in
entertainment and business media. The U.S. legal press, however, all but
ignored it. The seeming presumption is that no suggested search defamation
lawsuit could survive the rigors of U.S. defamation law, in particular Section
230 of the federal Communications Decency Act.  Section 230 states, “[n]o
provider or user of an interactive computer service shall be treated as the publisher
or speaker of any information provided by another information content
provider.” For purposes of Section 230, “information content providers” include
individual end users. The practical effect of the almost 20-year old Section
230 has been to immunize search engines, social media providers and other
websites from defamation and most other claims arising from user-generated
content.

Section 230’s protections are not absolute.  The Ninth
Circuit has identified two important prerequisites to Section 230 immunity. The
first, as stated in Batzel v. Smith, is that the defendant have
reasonably believed the unlawful content was provided with the intention that
it be published. The second, as famously articulated in Fair Housing Council
v. Roommates.com, LLC
, is that the defendant not have “materially
contribut[ed] to [the content’s] alleged unlawfulness.”  The Roomates.com
opinion noted that search engines would generally be entitled to Section 230
immunity because, unlike the defendant in the Roommates.com case, they
did not “force users to participate in [a] discriminatory process.”

A suggested search defamation or autocomplete search
defamation defendant undoubtedly would claim immunity under Section 230. They
would argue that the suggested search terms at issue had been “provided” by end
users and that they, as an “interactive computer service,” had passed them on
without “material contribution.” Already, in response to suggested search
defamation complaints, both major search providers (Google and Microsoft) take
that route. Suggested and autocomplete search terms, they claim, are
automatically generated by algorithms. Those algorithms, they further claim,
are in turn driven by the searches and browsing habits of other end users. 

As a factual predicate to a Section 230 defense, however,
the search engines’ positions wouldn’t be particularly strong. As is common
sense, the algorithms behind suggested search and autocomplete technology
aren’t black boxes. They’re proprietary applications devised and controlled—including
both inputs and outputs—by search engines or by those with whom they contract
to provide search services. Popular search engines already have taken steps to
eliminate racist and discriminatory search suggestions. The exercise of control
as to inputs, means of selection and outputs would, at least arguably, amount
to a “material contribution” within the meaning of Roommates.com

Additionally, and as relevant to Batzel, search
engines would be challenged to argue that search engine users or others
“intended” their content to be published as suggested search terms. Google, for
example, could point out that it receives a broad license to all content that
users “submit” in connection with Google’s services. That broad license, Google
might argue, is tantamount to an expression of intent that all user
“submissions” be re-published.  In the context of a practical contract of
adhesion, however, that argument would seem a stretch. Most end users would
cringe at the notion that someone might publish their search history. Google’s Batzel
argument would seem even worse to the extent its suggested search algorithm
considered non-user content. Absent a clearer expression of intent, a suggested
search defamation defendant seeking Section 230 immunity might fall short under
Batzel, too.

A court hearing a suggested search defamation case would
have to consider the implications of its ruling to search services other than
the major search engines. At least in the search context, courts have tended to
round legal edges in favor of search providers. But what of potential black-hat
search providers who might benefit from a search-favorable ruling? How much
control over algorithmic inputs and outputs is too much? And if search
providers aren’t liable for arguably defamatory search suggestions, who is?
Could a cadre of end users effectively defame someone through the repeated
entry of defamatory search suggestions, only to later claim as a defense that
they didn’t “publish” any of them?

Of course, a suggested search defamation lawsuit would face
any number of additional hurdles. Even presuming that a suggested search term
constitutes a publication—and it seems to fit the definition—a plaintiff would
have to prove that the particular combination of words, presented as an
autocomplete or suggested search term, was defamatory. A search engine would
argue that suggested search terms aren’t intended, and so can’t be understood,
as representations of fact sufficient to support a claim of defamation. A
plaintiff also would have to prove that the suggested search term at issue was
understood as referencing him and not others, and was seen by others. A search
engine defendant could be counted on to raise any number of additional
defenses, including the range of Constitutional protections afforded by New
York Times v. Sullivan
and related cases. Especially in an anti-SLAPP
jurisdiction like California—where a losing defamation plaintiff may end up
paying the defendant’s attorneys’ fees—the risks would be high.

Still, based on the number of inquiries we receive from
businesses and business persons victimized by suggested search and autocomplete
defamation, the chances of a test case are significant. It only takes one
motivated and sufficiently financed plaintiff to file a claim. It’s at least
possible to imagine a suggested search defamation case surviving a motion to
dismiss.

Hank Burgoyne is managing attorney of the A/V-rated Burgoyne Law Group, a San Francisco-based intellectual property and business litigation law firm specializing in Internet disputes. 

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