"Homophobe" brings Ireland's first "right to be forgotten" court case

A fascinating story in today's Irish Times details what seems to be the first court case in Ireland following the Google Spain ruling. However a less sympathetic plaintiff would be hard to find. The case is being brought by a Dublin man, Mark Savage of Lios Cian, Swords, who ran in the 2014 local elections on a platform which included reference to "Gay Perverts cavorting in flagrante on the beach in broad daylight". His election literature speaks for itself (click to enlarge):

Unsurprisingly, he was not elected. He now apparently objects to a Reddit thread characterising him as "Mark Savage - North County Dublin's homophobic candidate". Following an unsuccessful request to Google to have that thread deindexed, he complained to the Data Protection Commissioner who refused to order that Google do so. He has now appealed against that decision to the Circuit Court. I look forward to a full hearing, though I doubt it will be over in his optimistic estimate of two hours and I doubt he will be successful in his claim that Google should censor discussion of his views as publicly stated in an election campaign. If anything, this appears to be a complaint of defamation dressed up as a data protection matter.

Edited to add: Incidentally, the case also highlights an important structural point - chances are that most of the RTBF cases which become public will involve plaintiffs with relatively weak claims. The individuals with strong arguments to be deindexed will probably succeed in private at the point of initial contact with Google or else before the data protection authority. The only cases to be subject to public scrutiny before the courts will be those where both of the initial decision makers have found that the request should not be granted.

Irish newspapers have some curious views about search engines

The Irish newspaper industry seems to have chosen today for a bout of collective hyperbole about search engines. Here's what the Examiner had to say:

Work generated through effort, skill, imagination, professionalism, and usually considerable capital investment, is pirated by businesses with no connection to the creative process as a means to win revenue without risk or outlay. This process is hardly different to what we more commonly describe as theft. The scale of the piracy is astounding. In 2010, while every media company in the country shed jobs and cut costs to the bone, a single search engine operating in Ireland offered around 150,000 newspaper articles that cost publishers an estimated €46.5m to generate. Last year that site offered more than 350,000 articles at a cost equivalent to more than €110m. And all without paying one cent to those who created those articles.

There's more in the same vein from the Irish Times and the Independent.

Incredible, isn't it, that the newspapers are powerless to defend themselves against this "theft" and "piracy". Oh, wait - they're not. Instead, they've deliberately chosen to allow in search engines and to profit from the traffic which they generate.

Here's a non-technical explanation. You don't have to allow your site to be indexed by search engines. If you don't want your site to appear on Google you can use a simple file, known as robots.txt, which tells search engines what they can and can't do. The Examiner has one, as does the Irish Times and the Independent. So do they tell these "pirates" and "thieves" to keep out? Absolutely not. In fact, all three provide sitemaps for search engines which summarise their sites and make them easier to index, while both the Irish Times and the Independent provide specific instructions for the "Mediapartners-Google" searcher. Why do they do this? Because of a business decision that they benefit from the readership which added visibility in search engines generates.

The tone of the piece in the Examiner is entirely deceptive: far from being the helpless victim of "theft" and "piracy", the newspaper has chosen, for its own commercial advantage, to allow its site to be indexed and to benefit from the resulting visitors. Should the newspaper object, it is free to opt-out at any point. But it is shoddy work to misrepresent the position to its readers in this way.

The first Irish case on defamation via autocomplete

Another story lost behind the Sunday Times paywall last week was Mark Tighe's piece on what seems to be the first Irish case alleging defamation via Google's autocomplete system:

Hotel Fury over Google

A FAMILY-OWNED hotel in Louth is suing Google because it says the search engine giant gives web surfers the mistaken impression it is bust. The four-star Ballymascanlon House hotel, located outside Dundalk, has applied for a High Court injunction to prevent the Google search engine from suggesting it is in receivership.

Ballymascanlon is not in receivership and the Quinn family, who have run the hotel for 70 years, say it is trading successfully.

Google declined to comment on the legal action.

When search engine users type the first seven letters of the hotel's name into Google, the website's automatic prompting service, Google Instant, throws up the suggestion "Ballymascanlon hotel receivership".

The hotel, one of the most popular wedding venues in the northeast, says it has been contacted by brides who had booked weddings there and were "in tears" after seeing the Google prompt.

Mark Collier has an excellent post setting out the background to this case and more details, from which I've borrowed the following image showing the offending search terms:

This isn't the first time Google has been sued over autocomplete suggestions - it recently lost similar cases in France and Italy - and the case raises a fundamental issue as to whether Google should be treated as responsible for the suggestions which it claims merely reflect the most popular user queries. Undoubtedly (if the case makes it to trial) Google will rely heavily on the recent English judgment in Metropolitan International Schools v. Designtechnica, in which it was found not to be the publisher of defamatory snippets in search results on the basis that:

When a snippet is thrown up on the user's screen in response to his search, it points him in the direction of an entry somewhere on the web that corresponds, to a greater or lesser extent, to the search terms he has typed in ... it is for him to access or not, as he chooses. [Google] has merely, by the provision of its search service, played the role of a facilitator.

In this case, however, it may be that Google will face difficulties in running that defence. Looking at both Metropolitan International Schools and the recent Italian judgment, three factors seem likely to be important. First, unlike the case of search results, autocomplete suggestions do not merely reflect what is elsewhere on the web but are created by Google (albeit by algorithm). Second, as Google actively censors the autocomplete system it makes it harder to argue that there is no "human input" into the results - a factor which was critical in Metropolitan International Schools. Third (although the judgment isn't entirely clear on this point) the court in Metropolitan International Schools found it signficant that Google could not block all searches against particular terms without also blocking a great deal of unrelated material. In this case, however, it would seem quite simple to remove a particular autocomplete result for this hotel, ruling out any argument based on practicability or collateral damage.

Incidentally, I see from the High Court search that the action is listed as QUINN [SENIOR] & ORS -V- GOOGLE IRELAND LIMITED 2011/4784 P. I was surprised to see Google Ireland named as a defendant, as I understand that Google's search functions are run by Google Inc., California - a distinction which tripped up the Red Cross in their action seeking to identify a blogger hosted on Google's blogspot. In that case the Red Cross eventually had to seek the permission of the court to substitute Google Inc. as the defendant, and I'll be interested to see whether this happens in this case also.