Worldwide: A.B. C. Google Highlights Distinction In Liability For Defamatory Content In Hyperlinks And Search Engines

A.B. C. GOOGLE, 2023 QCCS 1167

A.B. c. Google, is a significant decision in defamation law because it highlights an important distinction between authors including hyperlinks to defamatory content, and search engines who provide hyperlinks to defamatory content. In the former, the author will not be liable for defamation provided they do not repeat the defamatory content. In the latter, as was the case here, search engines may be liable for defamation where they knowingly continue to include hyperlinks to defamatory content in search results.

This decision also demonstrates the differences between provincial defamation laws, and how Quebec's fault system operates.

FACTS

The plaintiff was accused by an individual of a crime he did not commit, and this defamatory accusation was posted on a website operated by another party (the "Defamatory Post"). The post was spread by Google Search, which provided the hyperlink to the Defamatory Post when the plaintiff's name was searched. Google informed the plaintiff that nothing could be done to remove the hyperlink of its U.S. version of the search engine. Google did initially remove the link but decided to make the link available to users in Quebec following the Supreme Court of Canada's decision in Crookes v. Newton, 2011 SCC 47 ("Crookes").

The issue in Crookes was whether there was liability in defamation for the owner and operator of a website that contained commentary about various issues, including free speech and the internet. The plaintiff in Crookes alleged that two links on the website connected to defamatory material about him but accepted the defendant did not write anything defamatory. The SCC concluded that:

Following this decision, Google concluded that search results yielding the Defamatory Post were merely a "reference to the existence and/or location of content by the hyperlink." The Court distinguished Crookes, on the basis that in Crookes, the defendant was an author who had merely linked to other sources. This important distinction means the Crookes decision does not apply to a search engine, whose job it is to provide hyperlinks.

Following the post, the plaintiff was shunned from business and social circles and his life spiralled. This case considered 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. The Court distinguished a search engine, whose business is to provide hyperlinks, from an author who makes reference to defamatory content via hyperlinks.

The plaintiff successfully claimed non-pecuniary damages and an injunction requiring the removal of the Defamatory Post on Google Search for users in Quebec.

DECISION

1. Applicable Law and Jurisdiction

A conflict of laws issue arose due to the nature of Google, searching and the plaintiff's history. The plaintiff was from Town A, located in Quebec, although had lived in the United States when the Defamatory Post was made. When the plaintiff discovered the Defamatory Post, Google informed him it could remove the hyperlink on the Canadian version of the search engine, but not the U.S. one, and it did. However, after the Crookes decision, Google allowed the link to re-appear. The plaintiff argued that Quebec law should apply, because of his ties to Town A, where he hoped to return to work and socialize in a community where people knew him before the Defamatory Post.

Google argued that federal law and specific state law should apply, and that the law of defamation in Quebec can only apply to the Canadian version of Google Search. Google did not contest the Court's jurisdiction over the plaintiff's claim for liability. However, Google argued the Court should exercise its discretion and not issue an injunction that Google considered would be contrary to applicable U.S. law.

Google's liability for defamation in the U.S. is governed by the federal Communications Decency Act, 47 USC § 230(c)(1) (1996) ("CDA"), which confers immunity on Google since it is considered to be a provider of an interactive computer service. Further, the applicable domestic state law prevented the plaintiff from bringing a claim there, owing to the expiry of a limitations period. Google argued that even if Quebec law applies, it must be interpreted consistently with the CDA given Canada's obligations under the free-trade agreement, Canada-United States-Mexico Agreement ("CUSMA").

The Court described the technical mechanisms of Google Search with regard to the location of a user in its analysis of the applicable law. When a user who is physically located in Canada searches on Google, they are automatically directed to the Canadian version of Google Search, even if a different domain name is typed. A user may override this automatic redirection by changing their location setting on the Google search page, or with a virtual private network ("VPN") tied to a different country. Google has the power to override this automatic redirection through geo-blocking.

The issue of whether Quebec or U.S. law applies was determined based on the Quebecstatute, Act to establish a legal framework for information technology, CQLR c C-1.1 ("IT Framework Act"), under which Google is an "intermediary that provides technology-based documentary referral services".

The Court held that Quebec law should apply for several reasons. First, the Court acknowledged that Google could give users in Canada the option to manually choose the Google Search version available in another state, and Google allows geo-blocking to implement a different legal treatment on the same website. As such the U.S. website can be treated under U.S. law when accessed on American territory, and it can be treated differently when accessed by a user on Quebec territory. The Court rejected Google's assertion that this was an instance of "libel tourism."

2. Fault

In Quebec law, defamation operates through the general provision on civil liability located at art. 1457 of the Civil Code of Québec, CQLR c CCQ-1991 ("CCQ"). Accordingly, there is no tort of defamation per se, as there is in common law provinces, where there exists a presumption of liability based on fixed criteria. As a result, under Quebec law, liability for defamation is determined on the basis of "fault" – that is, a breach of the CCQ.

The Court considered whether it is a fault for Google to once again make the link and the STC (a snippet, or short extract from the website) to the Defamatory Post available to users in Quebec after it had removed them in reliance on the Crookes decision. The Court determined that Google incorrectly interpreted Crookes, and as such had committed a fault under Quebec's defamation laws by making the link and STC to the Defamatory Post available to users in Quebec.

In this case, Google was providing access to the Defamatory Post, despite having been notified by the plaintiff under section 22 of the IT Framework Act, about the illicit nature of the text, thereby committing a fault. The Court held that a reasonable internet intermediary in the business of providing search results does not knowingly spread false information.

Google's argument against fault is that it was in compliance with the principles of liability set out in Crookes, and that it is providing a service to users looking for information on the Internet. Google's policies themselves emphasize its responsibility to remove incorrect and dangerous content. The Court held that Google holds itself in esteem as a curator of information. As such, the Court concluded it is Google's policy to remove content without having to be notified, and in this case Google was aware of the Defamatory Post.

Google then argued that a certain level of vexatious or false information will exist on the Internet, and that may lessen the intensity of the fault committed in relation to the plaintiff. The Court rejected this assertion, stating that the victim of the defamation is not the victim of a lesser fault by virtue of the fact that there are other victims of other faults.

3. Injury, Causation and Damages

The plaintiff must prove fault, injury, and causation between the fault and injury. Article 1609 of the CCQ sets out the general principle according to which a plaintiff "is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence" of a fault. The injury in defamation is injury to reputation. The plaintiff claimed he suffered psychological injury (called "moral" injury in the CCQ) spanning loss of self-esteem, loss of self-confidence, and loss of self-respect arising from Google's conduct. The Court accepted that the plaintiff suffered these moral injuries, and that these injuries were linked to the Defamatory Post.

In terms of mitigating his injury, Google pointed to a pattern of omissions by the plaintiff upon discovering the Defamatory Post. The Court determined that while it was true the plaintiff did not take up an option for arbitration offered on the impugned website, the plaintiff never consented to be on the website in the first place and had no obligation to pursue this mechanism of dispute resolution.

Considering the grave nature of the defamatory comments, the effect on the plaintiff, and the super-spreading communications technology of Google, the Court determined that the appropriate award for compensatory damages would be $500,000. The Court did not award the plaintiff punitive damages.

4. Injunction and Publication Ban

The plaintiff sought an order requiring first, that Google ensure the search results on Google Search did not list websites that contain the plaintiff's name and use his name, either given name or surname, within 15 words of the words "child molestation", "child molester(s)", or "pederast(s)." Second, that Google cease displaying search results where the plaintiff's name appears on webpages from www.ripoffreport.com or www.usacomplaints.com. The scope of the injunction sought would be worldwide.

The Court granted the injunction, but only in respect of the second branch of the application, and only in respect of users in Quebec. The Court reasoned that allowing the first branch of the injunction application would create the risk that Google would be prohibited from showing search results with links to news reports on this judgment.

The Court held that the plaintiff failed to meet the test for a publication ban, but it was cognizant that the present judgment would likely attract public attention, and as such it determined that it would suspend its rejection of the requested publication ban and ordered the ban for 45 days, to allow the Court of Appeal to pronounce on the matter.

CONCLUSION

This case demonstrates the distinction between authors referring to defamatory content via hyperlinks, and entities such as Google—who are in the business of providing hyperlinks—linking to defamatory content.

While authors who hyperlink to defamatory content may avoid liability, search engines, such as Google, may be held liable in defamation where they knowingly continue to include hyperlinks to defamatory content in search results.

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