Google has been ordered to pay a Quebec man $500,000 in moral damages for not removing a link in its search engine to an article wrongly alleging he was convicted of a sexual offence.
However, it was the judge’s refusal to agree that Google is a mere neutral messenger of information that may be of greater interest to judges in the rest of the country.
The link went to the website of an American-based consumer reporting site that carried the lie. What followed, said the judge “was a devastating form of shunning from business and social circles.”
In his recent decision awarding damages, Justice Azimuddin Hussain of Quebec’s Superior Court noted that “Google variously ignored the plaintiff, told him it could do nothing, told him [in 2011] 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.”
That wasn’t good enough for the victim, who sued for damages under Quebec’s Civil Code. Google raised several defences, including that as a U.S.-based company American law applied, or Canadian law had to be interpreted in a way consistent with the Canada-U.S.-Mexico Agreement.
Briefly, the judge said Google’s interpretation of Quebec law was wrong. Not only was Google fined, he also ordered the removal of the defamatory post on Google Search for users in Quebec.
Because the decision involves Quebec’s civil law, which is different from the common law in the provinces and territories in the rest of the country, the judge’s interpretation of the law isn’t directly applicable outside Quebec.
However, judges in those jurisdictions might find persuasive Hussain’s conclusion that Google curates information, not merely carries it. “There are two images that Google presents of itself which are in tension with each other,” the judge wrote: “The neutral messenger of information versus the careful curator of information.”
He then cited a number of statements on Google’s web pages showing it plays an active role in what does — and doesn’t — appear in searches. The finding could be respected in other provinces and territories, said privacy lawyer Barry Sookman of the McCarthy Tetrault law firm.
“Google argued that it wasn’t a publisher, that it was a pure intermediary. There is this concept of a ‘secondary publisher’ [a newspaper, magazine or website that repeats a statement of an original statement] is in common law, and generally speaking if they have notice [of an allegedly defamatory statement] and the publish it they’re going to be liable.
“The finding Google was a curator …. would make it even more likely that a common law court would find Google liable [for damages] if they don’t take it down.”
The Quebec judge also dismissed Google’s argument that the Canada-U.S.-Mexico Agreement (Americans call it the USMCA) gives internet service providers protection for their actions in Canada and Mexico under the U.S. Communications Decency Act (CDA). In negotiating the trade treaty, the judge noted, Canada didn’t agree to language similar to the CDA. Nor does federal law over-rule provincial law, he added.
To protect the man’s privacy, the judge ordered his name not be published.
It isn’t known if Google will appeal the decision.
In a commentary, Sookman said the case “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,” he wrote.
“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.”
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