Table of Contents Hide
- Case Overview
- Key holdings in the defamation case against Google
- CUSMA does not protect Google from Liability
- Quebec’s Civil Code applies to Google’s search engines
- The Supreme Court decision in Crookes did not insulate Google from liability
- Google is a curator of search results and is not a neutral intermediary
- Quebec court grants a delisting injunction against Google
- Comments on the Google defamation case
In what has become a series of worldwide struggles against Google by persons whose reputations have been ruined by defamatory posts which Google refuses to de-list from its search engines, a Quebec man was awarded $500,000 in moral damages and a de-listing injunction against Google for breach of his rights under the Quebec Civil Code. The battle which started approximately 16 years ago and which ended after more than 6 years of litigation is reported in the case, A.B. c. Google, 2023 QCCS 1167.
The overview of the case was provided by Justice Hussain who succinctly summarized the issues and the court’s findings.
Like Franz Kafka’s character, Josef K. in The Trial, the Plaintiff woke up one day to find himself accused of a crime he did not commit. In the Plaintiff’s case, he was accused of already having been convicted of the crime and a particularly heinous crime at that.
In contrast with Josef K., the Plaintiff was not accused by the justice system but rather by an individual, who posted the defamatory accusation (Defamatory Post) on a website operated by another party.
The Defamatory Post was then spread by an application operated by the Defendant Google LLC (Google) called Google Search, popularly known simply as the search engine “Google”, which would provide the hyperlink to the Defamatory Post when the Plaintiff’s name was searched.
Google Search is the dominant service provider in the world in the industry for internet searches.
A prominent businessman originally from Town A with a long list of achievements both in Canada and in the United States over a productive adult life, the Plaintiff has been living a waking nightmare ever since the Defamatory Post, especially in light of the stigmatizing nature of the alleged crime.
Google variously ignored the Plaintiff, told him it could do nothing, told him it could remove the hyperlink on the Canadian version of its search engine but not the U.S. one, but then allowed it to re-appear on the Canadian version after a 2011 judgment of the Supreme Court of Canada in an unrelated matter involving the publication of hyperlinks.
Google finally settled on the position that the Canadian version of Google Search will remove the “STC”, i.e. snippet (short extract from the website), title of the website, and cache (stored snapshot of the website at issue) attached to the hyperlink for the Defamatory Post, but not the hyperlink itself.
As for other country-specific versions of Google Search, including that of the U.S., the link and the STC would remain.
The Plaintiff found himself helpless in a surreal and excruciating contemporary online ecosystem as he lived through a dark odyssey to have the Defamatory Post removed from public circulation.
What followed the Defamatory Post against the Plaintiff was a devastating form of shunning from business and social circles such that the Plaintiff’s life spiralled from the pinnacle of the commercial real-estate brokerage world in Town B down to a level where he kept encountering obstacles in his business career even though previously he had known success, was compelled to borrow from friends to make ends meet, had to move back to Town A, and became socially isolated and anxiety-ridden about his relationships with family, friends, and business associates.
This case raises unprecedented questions in Quebec law about the liability of a company like Google, which provides internet search-engine services, for making available to users of its search engine a defamatory internet post, made by a third party and appearing on the site of yet a different third party, despite being on notice that it is facilitating access to an illicit activity, namely defamatory content.
More generally, the case raises important issues about the role of internet intermediaries like Google in the dissemination of information around the world, the law applicable to their search engines accessible in Quebec and the jurisdiction over them by Quebec courts, and the contemporary reality of the permanence of information, however much false, on the internet…
On the particular facts of the present case, which may be different from the facts of other cases, Google had already recognized that the Defamatory Post was illicit and had accordingly removed the hyperlink to it on the Canadian version of Google Search.
The Plaintiff claims moral damages, punitive damages, and an injunction against Google.
For the reasons below, the Court grants the Plaintiff’s action in part: damages for moral injury in the amount of $500,000 and an injunction requiring the removal of the Defamatory Post on Google Search for users in Quebec.
Key holdings in the defamation case against Google
CUSMA does not protect Google from Liability
Under Quebec’s law, Act to establish a legal framework for information technology (IT Framework Act), intermediaries are provided a safe harbour against certain forms of liability which the court found would apply to civil actions brought against them for publishing defamatory information. This protection does not apply once the intermediary becomes aware that its services are being used for an illicit activity and does not act promptly to cease such activity.
Google argued that even if Quebec law applies, it must be interpreted consistently with Article 19.17.2 of the Canada-United States-Mexico Agreement (CUSMA). Specifically, Google argued that CUSMA requires that the Civil Code liability be constructed as broadly as s.230 of the Communications Decency Act (CDA), a controversial law that provides wide immunity to service providers and which would shield Google from defamation claims brought against it in the United States.
The court rejected Google’s arguments for three essential reasons:
First, there is no conflict between the Civil Code liability for defamation and CUMSA. As found by the court,
The intermediary’s potential liability under the IT Framework Act is not based on a fault the intermediary may have committed as an “information content provider” (article 19.17.2 CUSMA), but rather for failure to adhere to its obligations as an “intermediary that provides technology-based documentary referral services”.”
“Thus, while an intermediary cannot be held liable for the behaviour of the content provider and has no positive obligation to monitor all of the content that its search engine refers to, it does have a potential liability “upon becoming aware that the services are being used for an illicit activity.”
Second, Article 19.17.2 CUSMA does not require Canada to have an immunity provision that is identical to the expansiveness of the American provision in s.230 of the CDA.
Third, the CUMSA itself has an exception where necessary to protect public morals, an exception which the court held applied in the circumstances.
Fourth, the court expressed the opinion in obiter dicta that Parliament’s treaty power does not displace provincial law on defamation.
Quebec’s Civil Code applies to Google’s search engines
Google contended that while the Quebec court had personal jurisdiction over it, Quebec’s laws did not apply to Google’s search engines including its .com search engine which is operated from the U.S. The court rejected this Google argument stating:
Since the Plaintiff was domiciled in Quebec in 2015 and the alleged injury necessarily appeared there, and Google should have foreseen that when making the link to the Defamatory Post available anew on the Canadian version of Google Search, article 3126 CCQ calls for Quebec law to be applicable to the Plaintiff’s claim.
Quebec law applies on Québécois territory and therefore if a user here accesses Google Search, whether it is the Canadian version or any other national version of Google Search, Quebec law on defamation applies.
Otherwise, it would be too easy for internet intermediaries to circumvent the law promulgated by legislatures for the territories they govern, and applied and enforced by the courts: intermediaries could continue to make a default version available to users in Quebec in ostensible compliance with local law but then allow for an option to users in Quebec to easily choose another country-specific version, as is the case currently, and avoid the effects of this jurisdiction’s law.
Google acknowledges this general situation through its willingness to use its geo-blocking mechanism (mentioned further above), despite its legal position that Canadian law cannot apply to a website that is governed by U.S. law.
However, the Court is of the view that the latter legal position is unsustainable. Google itself gives its users in Canada the option to manually choose the Google Search version available in another state, say the U.S. version, and so it is specious to assert that Canadian law cannot apply to a website otherwise governed by U.S. law.
Moreover, geo-blocking allows for Google to implement a different legal treatment to the same website, i.e. the same U.S. website can be treated one way under U.S. law when accessed on American territory, and it can be treated in a different way (as in compliance with provincial defamation law) under Quebec law when accessed by a user on Québécois territory.
The Supreme Court decision in Crookes did not insulate Google from liability
In Crookes, the Supreme Court held that the mere use of a hyperlink on a website did not result in a publication for defamation purposes. However, as I noted in a prior post on the Crookes decision, the Supreme Court’s decision could apply to an “innocent disseminator” which, in the Internet context, “is an entity that acts in a content neutral manner, having no actual knowledge of an alleged libel or infringement, and not being aware of circumstances to put it on notice to suspect a libel or infringement, or being negligent in failing to find out about it, and whose role in the dissemination of the information is merely passive, instrumental, and automated”. Under this principle, however, “internet intermediaries have to take active measures to remove or disable access to defamatory content from their systems to prevent further dissemination to avoid being liable for defamation”.
Justice Hussain held that Crookes was not a bar to Google’s liability for defamation.
First, the factual context of Crookes was distinct from the present case. It did not deal with a search engine and the latter’s liability as an intermediary service provider, but rather the liability of someone who authored a text that contained references in the form of hyperlinks. Further, in Crookes the Supreme Court made it clear that it was assessing the liability of a content provider not with the liability of an intermediary. Here, Google was “in the business of providing hyperlinks, that is all it does”.
Whereas the author of a text does not necessarily vouch for the truth of everything said in the links cited within the text, just as the author of a text does not necessarily vouch for the truth of everything said in a footnote, in contrast, Google does represent to the public that it provides trustworthy content and seeks to remove and reduce the spread of harmful misinformation.
Second, the Crookes case was not premised on Quebec’ legal regime including Google’s fault under the Civil Code and Quebec’s IT Framework Act.
The court found that Google knowingly spread false information and was thus liable. The Court concluded that Google was providing access to illicit text, despite having been notified by the Plaintiff under section 22 of the IT Framework Act about the illicit nature of the text. It thereby committed a fault under the Civil Code.
Its conduct in this regard departs from the standard of conduct of a reasonable person. A reasonable internet intermediary in the business of providing search results in response to keywords and website links for those search results does not knowingly spread false information…
Neither the common law principles set out in Crookes nor any contextual factor negate the wrongfulness of providing access to the Defamatory Post.
There is no public interest, let alone issue of the reasonable person’s right to freedom of expression, in Google communicating and the user learning that one R. S. from Town G has (falsely) stated that the Plaintiff is a pederast and was convicted of child molestation in 1984.
Google is a curator of search results and is not a neutral intermediary
Google has consistently taken the position in defamation suits that it is merely a neutral intermediary and thus cannot be responsible for publishing defamatory content, a position consistently rejected by courts around the world. The court found, however, that this image of Google conflicts with Google’s “self-styled role as careful curator of information”, an image Google has cultivated in public statements, both in the legislative realm and on its webpages.
Google’s representations to the public of its being a “curator” of trustworthy information was considered by the court to be relevant to the fault analysis “since they show that Google represents to the world that it is more than a neutral messenger of information”. “Google curates information and it is aware of the importance of not spreading defamatory information. The public accordingly holds it in esteem as a curator of information.”
Google’s actual practices, as found by the court, however, did not live up to its public representations.
Google applies what it refers to as the “least censorious” approach to search results. This is more consistent with the image of neutral messenger of information, a lower standard compared to the careful curator.
In the course of awarding moral damages of $500,000, the court likened Google to a “super-spreading communications technology of an internet intermediary… which is incapable, due to its dynamic algorithmic Googlebot, of predicting the keywords that will yield the Defamatory Post for users at any given moment”.
Quebec court grants a delisting injunction against Google
In addition to awarding extensive damages against Google, the court also issued a mandatory injunction requiring Google to “ensure that its search results not list any webpages from the domains “ripoffreport.com”, “www.ripoffreport.com”, “www.usacomplaints.com”, or “usacomplaints.com” containing the words “A. B.”, this injunction being restricted in geographical scope to all users of the search service offered by Google, Google Search, located in the province of Quebec.”
Comments on the Google defamation case
The decision of the Quebec court is an important one. It clarifies the liability of search engines, especially in Quebec, which are liable for not delisting illicit content such as defamatory posts once they become aware of such content. The court’s interpretation of CUSMA and the decision in Crookes and its characterization of Google as a “curator” of information rather than as a mere intermediary, are also likely findings that will be applicable across the county. The court’s order requiring Google to delist content is a further evolution of Canadian delisting orders against the search engine which were made in cases such as Google v Equustek and Langlois v. Google.
The A.B. v Google case also highlights the difficulties individuals have in persuading Google to remove illegal content. Time and time again individuals have had to endure years of suffering because of Google’s “least censorious” approach to removing defamatory search results. I chronicled these in various prior posts dealing with defamation claims against Google such as the Duffy, Defteros, Trkulja, and Tamiz cases.
Perhaps this ruling by the Quebec court, coupled with the heightened awareness of the problems caused by digital misinformation, will nudge Google to change its removal practices from “least censorious” to one reflecting its self-styled image as a curator of trustworthy information.