Injunctions against online search engine service providers - Javier Martínez Bavière
Imposing the obligation on search engines to remove links listed in search results because of alleged unlawful content - instead of placing that obligation on the content provider - may seriously endanger the effectiveness of search engines and their capacity to provide an accurate, complete and neutral representation of the information available on the Internet.
Search engines play an essential role in the development of the information society by ensuring the free flow of information and ideas through the Internet. It is widely accepted that search engines must be exempted from liability for information published on third-party websites that are simply listed in search results. Although the European Union (EU) e-Commerce Directive (Directive 2000/31/EC) refrained from including a specific exemption of liability for search engines (having provided such for mere conduit, hosting, and caching services), most EU countries grant that exemption. In some countries, such as France, the exemption for search engines has been established by analogy with caching or mere hosting, or it has been derived from the general principles of tort law. Other countries, including Spain, Portugal and Austria, have carved out specific rules analogous to those applying to other categories of internet service providers ISPs.
Such wide exemption of liability for search tools is indeed necessary since search engines have no control over all the information that they process. Monitoring the content in search results would be unfeasible - not only due to the enormous amount of information that is indexed - but also because the illegality of a specific piece of information is in most cases not apparent, and may depend on factual and legal circumstances that search engines cannot possibly take into consideration.
However, search engines frequently face injunctions ordering them to remove or block search results. It is a mistake, both technical and legal, to believe that search engines can be effectively used to preclude harmful information from being accessed on the Internet. There are at least four reasons for rejecting that assumption:
1. Injunctions against search engines do not contribute to the termination of the infringement. Indeed, search engines, unlike other ISPs, do not host, or make the content available, and they have no control of the content made available by third parties that they merely reflect. Therefore, search engines are unable to remove illicit content, or disable access thereto. After being removed from a search engine, the relevant content remains just as accessible as it was before. Links to the illicit content can be shared via email, or through any social network, and the content can also be located through any of the hundreds of alternative search tools. Only the content provider itself, or the ISPs that make the content available (which are, hence, able to remove it or block it), may effectively be ordered to prevent access to that content, thus bringing the infringement to an end.
2. Search engines cannot technically preclude unlawful content from being listed in search results. Search engines may abide by an injunction to deindex a specific URL, but if the information remains accessible on the publisher’s site, that would not prevent the content from being reindexed after the subsequent visit of the crawler. Even if a measure to permanently block a URL could be adopted, the publisher of the information would be able to circumvent that measure by simply transferring the content to a new URL. No effective filtering techniques are available. Filtering by keywords would obviously result in a massive exclusion of lawful content. Filtering by content, apart from being cumbersome to develop, would have a huge cost in terms of the speed and efficiency of the service, while also being very easy to elude. A publisher could easily prevent web crawlers from accessing its content (using the standard protocol ‘robots.txt’ that major search engines obey). In such cases, search engines would ignore the content of the site, and would therefore be unable to identify infringing material. Nevertheless, the site may still appear in search results if it is found to be relevant, for example, in view of the number of other websites linking to it. Injunctions ordering search tools to ensure that certain content be proactively barred from search results are therefore technically objectionable. Furthermore, they would result in monitoring obligations for the search engine that would be incompatible with the prohibition set forth in Article 15 of the e-Commerce Directive.
3. Injunctions against search engines are generally unnecessary. As mentioned above, information displayed in search results is a mere reflection of the content published online. Removal or blocking of any content by its publisher, apart from terminating the infringement, would result in the content automatically disappearing from search results. Therefore, injunctions against search engines are redundant and excessive, except in situations where a valid direct order against the publisher has proved impossible to enforce.
4. Orders to remove search results must be strictly limited to links to unlawful content. Search engines are frequently required to remove links to news sites, blogs or official gazettes in cases where the information is undeniably lawful, or where the lawfulness of the publication is not in question. The alleged grounds are usually that, despite the information’s lawfulness, the search engine would be in breach of other statutes, basically data protection laws. Such claims cannot be sustained. Search engines have a neutral role with respect to the information that they display in search results. If a piece of information is lawfully made available on the Internet, search engine activity that merely reflects that content cannot be deemed unlawful. Pursuing injunctions aimed at eliminating lawful content with the excuse that search engines infringe data protection laws is, at best, a fraud de la loi, that is, an attempt to circumvent constitutional freedoms of expression and information, or other rules on mandatory publication in official gazettes. Such injunctions against search engines are aimed at obstructing the dissemination of legitimate information, and are a serious threat for the free flow of information and ideas.
Javier Martínez Bavière is a Partner at Pedro Alemán Abogados (Madrid)
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