Google is the world's most-used search engine, with monthly usage numbers in the billions. In recent years, the tech behemoth has sought to diversify its offering - moving into a myriad of different information-based fields including mapping and satellite systems, business listings and reviews. These reviews can be left by anyone, with no authentication required save the provision of an email address.
While Google has stringent protocols in place to prevent the utilisation of false profiles to create fake or inappropriate reveiws, it must be acknowledged that such an open-source review system is capable of being corrupted. This is particularly worrying in light of the fact that Google is responsible for 75% of online referrals. Given the prominence of 'social selling', it is surprising that the manipulation of reviews to disincentivise the flow of business to competitors is not a more prominent problem. However, it is testament to the comprehensive nature of Google's content policies that such a phenomenon has not become a reality.
Before the internet, receiving a negative review caused serious but ultimately fleeting damage. If you were unlucky, such a review would appear in a widely-circulated periodical - but before long, public memory would decline and business would slowly pick up again, as part of a process referred to as the 'fade factor' by Justice Caroll in a prominent case pertaining to one Mr Haughey. If the review was indeed found to be false and defamatory and not merely a statement of opinion, the newspaper or magazine in question would usually have a known and publicly accessible address, thereby enabling the easy pursuit of redress.
In this era, newspapers and critics were effective kingmakers. However, this is no longer the case as the internet has levelled the playing field greatly. Anyone with a dial-up connection can now cause irreprable harm to the reputation of your business - all it takes is a false Gmail account, a grudge and a lack of scruples. This review then stays posted indefinitely, until the defamed individual takes action. Moreover, pinning down the exact location of the would-be defendant could prove difficult given the prevalence of VPNs and other IP-masking applications.
Defamation in the digital age
As with all areas of the law, defamation has had to deal with added demands for malleability as the rapid advance of technology spawns changes within wider society - the most obvious example of this being the preponderance of social media users to forget that Twitter and Facebook are not guarded conversations amongst friends but rather, could be considered as publication within the meaning of the Defamation Act 2009.
Section 2 of the Act defines a defamatory statement as that which 'tends to injure a person's reputation in the eyes of the reasonable members of society'. This is somewhat of a pivot from the common law position, whereby reputational damage was assessed against the perceptions held by 'right-thinking' members of society. Luckily, s 2 defines publication as including the internet and other 'electronic means' - thereby removing the possibility for confusion.
Section 27 provides for a defence of 'innocent publication' where the defendant:
- was not the author, editor or publisher of the statement to which the action relates,
- took reasonable care in relation to the publication of the statement and,
- neither knew nor had any reason to believe that what (s)he did caused or contributed to the defamatory publication.
In ascertaining whether or not an individual has taken 'reasonable care', the courts will have regard to:
- the extent of the defendant's responsibility for the actual content of the statement or the decision to publish it,
- the nature or circumstances of the publication,
- the previous conduct or character of the defendant.
Upon an initial examation of the 2009 Act, it appears as though s 27 should provide a carve-out for search engines and other internet service providers (ISPs) as most information is provided by third-party individuals. However, difficulties arise whereby the individual alleging defamation brings material to the attention of the ISP, who then fails to remove it within an expedient timeframe.
Google: online graffiti or community notice board?
In the recent UK Court of Appeal case of Tamiz v Google (2013), anonymous comments were made about the plaintiff on a blogging platform hosted by the defendant. At issue here was what level of control, if any, the defendants had over the content which appeared on the platform and whether or not the time taken by Google to have the offending posts removed was reasonable or not.
In Tamiz, the allegedly defamatory posts had been online for two months before they came to the attention of the defendant via a letter of claim sent by the plaintiff. Five weeks later, the defendant forwarded the complaint to the blogger in question, who then took three days to remove the material from his site. In his judgment, Richards LJ decided that the five-week period taken by Google to intervene was sufficient to justify the finding that they were in fact, a secondary publisher. He held that:
'If Google Inc. allows defamatory material to remain on a blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material.'
He then went on to draw an interesting distinction between the various interpretations which have been put forward on the role Google plays in the publication of defamatory comments on services it plays host to. The lower court had likened Google's role to a wall upon which defamatory graffiti is sprayed. However, Richards LJ found that the 'provision of a platform for the blogs is equivalent to the provision of a notice board, and Google goes further than this by providing tools to help a blogger design the layout of his part of the notice board.'
Therefore, the high degree of help which was offered to users of the platform was integral to the COA's finding that Google had taken a secondary role in helping to publish the material, and were therefore liable for the defamatory nature of same. Even though the comments in this case were too trivial to consider the awarding of damages, the clarification offered to the potential liability of ISPs as secondary publishers is quite illuminating and will no doubt be litigated further in future cases.
This issue also appeared before the Supreme Court of Southern Australia in Google Inc. v Duffy, where it was held that once Google has received notification of false and defamatory statements, they will be held liable as a secondary publisher if they fail to act. Therefore, the argument can be made that Google could be held liable as a publisher of business reviews where they have received notification that the impugned review is false and defamatory but fail to act within an expedient timeframe.
If this line is followed in Ireland, then it is conceivable that liability could attach to ISPs and search engines as secondary publishers where they fail to take action post-notification. Companies like Google will then be forced to either defend the veracity of the material along with the original reviewer, or remove the review entirely to avoid exposure. In the interest of legal certainty, it would be useful if a test was laid out in future cases to ascertain what timeframe should be considered reasonable for the purposes of removing defamatory materials, in a world where millions of pieces of content are posted onto the various online platforms every single minute. This in turn places a heavy burden on companies like Google to police said content, which it must be acknowledged they do as far as is practicable.
Moreover, freedom of expression advocates will argue that the threat of litigation will serve to deter the fair and honest appraisal of businesses and restaurants, a process known as the 'chilling effect' when applied to journalism. Putting pressure on Google to remove a review based on the strength of one person's subjective belief that it is in fact injurious to the reputation of their business, forces ISPs into a quasi-judicial role, whereby they are forced to ascertain the accuracy of competing claims. Therefore, it is plain to see that a balance must be struck between protecting the open-source nature of the internet and preventing defamation - all the while remaining cognisant of the importance of free speech.
Litigating libel online: the Irish experience
It is therefore fair to say that while the common law's approach to this issue has been scattershot at times, a general consensus is emerging that ISPs and search engines may be deemed liable as secondary publishers if they fail to remove defamatory material within a reasonable timeframe post-notification.
This then creates a litany of issues for the secondary publisher, who must make a judgement call on the seeming veracity of the impugned review, and quickly act to remove same if it has been deemed defamatory. This might sound simple, but in practice requires a well-resourced taskforce of online content police, presumably numbered in their thousands, supported by vigilant Google users who can report and flag such content voluntarily if it seems contrary to the company's content policies.
As all practitioners know, the option is always there to simply sue the reviewer, even though it may sometimes amount to an expensive and ultimately fruitless exercise. Moreover, the usual problems encountered with traditional defamation also apply in the internet world - that a person does not cease to be defamed after an award of damages, no matter how substantial they may be.
Traditionally, injunctions restraining the publication of such material, colloquially known as 'gag orders', were ordered to safeguard the reputation of individuals at risk of defamation. These malleable and responsive mechanisms are far better at mediating between one's right to a good name and freedom of expression, particularly if granted at the interlocutory stage. This is because the courts will be able to re-assess the merits of the plaintiff's case once again at the main hearing.
The concept underlying these injunctions has luckily been applied quite smoothly in the age of the internet, most notably through Norwich Pharmacal Orders (NPOs). These innovative legal devices mandate the unmasking of an individual operating anonymously on the internet. In McKeogh v John Doe, the plaintiff sought the removal of a video from YouTube which wrongly identified him as a taxi patron who had failed to pay his fare. Peart J granted NPOs requiring the defendant to reveal the identity of certain users who had commented on the offending video.
In the subsequent case of Petroceltic Plc v Automattic Ireland Ltd (unreported), the plaintiff gas company was the subject of malicious, defamatory comments made on the blogging site, WordPress, by an anonymous user. A Norwich Pharmacal Order was requested by Petroceltic, forcing the defendant to reveal the identity of the user so that defamation proceedings could be initiated. Baker J conceded that the posts seemed to be defamatory at first reading, and therefore sufficient to grant the NPO. Further orders were issued to ensure the deletion of the post.
Practical advice for victims
When it comes to online defamation, the recovery of costs and damages can oftentimes prove an impossible task. Perhaps it is worth noting the various practitcal measures, outside of litigation, which are available to victims of false and defamatory Google reviews.
Almost every business will encounter bad reviews at some point of their existence, of that there can be no doubt. As the legal services industry is ultimately an outcomes-based one, there are invariably going to be clients who for one reason or another are unsuccessful. Morreover, studies show that people are more likely to post a negative review than a positive one, as human nature is inherently pessimistic. Therefore, it is imperative to encourage satisfied clients to post positive reviews to Google.
Law firms should also be wary of 'taking ownership' of their Google business page, as this comes with a raft of caveats which would indemnify the host in the event of a false and defamatory review. The best way to correct the imbalance is to respond to negative reviews and to explain politely where things may have gone wrong. Approaching the issue in such a forthright manner will enable future clients to sift out the negative reviews - which may be posted under false-looking profiles - from the more genuine, verified reviews. This counter-acts any amage done by false reviews without indemnifying Google in the event that you wish to take matters further.
If Ireland is to follow the path that Australia and the UK COA have started down in finding Google liable as a secondary publisher for defamatory remarks where they fail to remove them within a reasonable timeframe, ISPs may soon be forced to take a proactive role in preventing the publication of same - including misleading reviews.
One may only hope that a comprehensive statement of the law is made by the Supreme Court in the upcoming Schrems appeal - so that a future line of judicial reasoning may be illuminated - even though the 'innocent publication' defence outlined in s 27 of the 2009 Act, coupled with the fact that the UK have adapted the traditional 'innocent disseminator' defence to the online world, seems to point to the fact that ISPs and search engines will have a decent chance of avoiding liability provided a comprehensive content policy is in place.
Should this prove ultimately to be the case, victims of false and defamatory online reviews may have no choice but to engage in the conciliatory processes outlined above - namely engaging with and attempting to assuage the aggrieved reviewer, or simply opt to litigate the matter to conclusion, aided by the useful innovation known as the Norwich Pharmacal Order.
Bloomsbury Professional's Intellectual Property and IT Law service has been designed to provide practitioners with cutting edge insight into the rapidly evolving area of cyberlaw. Featuring titles from industry-leading professionals such as Denis Kelleher, Karen Murray and Paul Lambert, this useful resource is an essential addition to the arsenal of any lawyer looking to future-proof their practice. To purchase a subscription or to organise a free trial, contact our sales team at email@example.com / 016373920.
Note: This article is not intended to be relied upon as legal advice.