Joris van Hoboken

According to the EU observer. And the European Commission is asked to scrutinize the deal from an antitrust perspective.

The motivation (in Dutch) of the preliminary judgment of the Court in Amsterdam about the liability of a website for a wrong suggestion in a Google search result snippet has been published. The problem was that a combination of two sentences ’suggested’ that defendant Zwartepoorte, a car salesman, was bankrupt.

As was to be expected, the judge concludes that its judgment is very case specific. It clarifies that it involves a balancing act between the freedom of expression of websites and the damages suffered by the plaintiff.  According to the Court, the duty of care to remove or restructure the content that caused a combination of snippets to appear in a Google search result existed because:

1. plaintiff had suffered damages because of the wrong suggestion;

2. defendant used the services of Google, had optimized the ranking of its website in Google, and profited from this (through advertisements);

3. Plaintiff had requested to do something about it a number of time, with reference to the damage it was suffering;

4. It was easy for defendant to make a simple change to the website that would have caused the snippet to change;

Discussion

Ar these circumstances that case specific? I very much doubt it. And are they convincing?

Let us first consider the aspect of damage. There was proof that some people thought that plaintiff was bankrupt. They were calling and writing the company and even asking the regional newspaper in Zeeland, the PZC. There was no proof that this caused plaintiff to suffer material damage. It’s unclear whether the Court assumes there was any. From the lack of material damages in the verdict, it seems there was insufficient proof for this. The damage therefore consists of people thinking that defendant was bankrupt.

I wonder what is meant by the statement that defendant used the services of Google under 2. Normally, the inclusion of one’s website in Google does not imply the use of any service. It could mean that defendant used Google’s webmaster tools to optimize the site, so the webmaster should have been aware of Google and the importance of Google’s search results. The other arguments under 2 fit into this reasoning. Not only had plaintiff knowledge of Google’s search service, it optimized it and profited from a prominent listing because it attracted visitors, which in turn increased advertising revenues.

The argument under 3 increases the knowledge of defendant that something could be causing damages to plaintiff. Argument 4 relates to the costs and difficulty of avoidance to cause damage. Defendant did not control the combination of sentences in the search result but by restructuring its website or removing the word bankrupt from the particular page, it could cause the combination to disappear, according to the Court.

In other words, the Court puts itself in the website editor’s shoes. I find this highly problematic from a free speech perspective. And implicitly, the court assumes that there is not a lot of value in the website and the combination of information it contained.

Legal Cause

The other basic problem with the Court’s reasoning is in the aspect of assigning the damage to the conduct (negligence) of defendant. This assignment of damages, i.e. ‘legal cause’, is a substantive legal test in (Dutch) tort law, which relies on the foreseeability or the remoteness of damages. It is with regard to this test that the court’s reasoning breaks down. Again, the damage consisted of people thinking that plaintiff was bankrupt. For legal cause to be fulfilled, these thoughts should be somehow reasonable. And freedom of expression makes the test of legal cause particularly important. One can not be liable for a completely wrong conclusion that is drawn from one’s statement. Google search results are search results, they are not an independent sources of information. In particular, Google’s snippets are not an authoritative source of information about bankruptcy. If one wants to check whether a company is bankrupt, there are specific sources where this information can be found. And people that search for [defendant bankrupt] were probably acting on a rumor already. They in particular should be expected to check the underlying information. It also follows that the conclusion that defendant could easily prevent the damage is a little too easy. In principle, it’s a company’s own responsibility to address unreasonable conclusions about its business, by its own statements or conduct.

Who’s responsible?

Of course, the judge had to clarify why defendant, a website, could be held responsible for a combination of (perfectly legal) sentences in a search result which it did not control. The Court argues that it might be true that the website had no control over the functioning of Google but suggests that these questions about the opacity of Google’s functioning should be addressed in a broader context. With reference to the arguments under 2 above, it then concludes that defendant had its own responsibility. The Court evades the question whether Google would have been liable as well, i.e. if it would have refused to take down the result after a request to do so. I doubt it. First, Google would have hired better lawyers, that would have made a better case against it. And second, the judgment fits well into the paradigm to address ‘problems’ in search engines by addressing the sources of information. But seriously, to make websites liable for the impact of legal publications in search engines on unreasonable end-users is a step too far.

It will be interesting to see whether there will be an appeal. Even if there isn’t, I think we can safely assume that this judgment will remain ‘unique’. UPDATE: Defendant appealed, this time with a lawyer.

Via Arnoud Engelfriet.

A Dutch judge has concluded (in a preliminary judgment) that a website is liable for a wrong suggestion in the snippet text of ‘its’ Google search result. The judge has ordered the webmaster to change its website in a way that will stop the wrong suggestion from showing up in Google. Note that the text on the website itself was not unlawful. The problem was that a search for [zwartepoorte failliet] (= CompanyName bankrupt] resulted in the following snippet text:

Volledige naam: Zwartepoorte Specialiteit: BMW … Dit bedrijf is failliet verklaard, het is overgenomen door het motorhuis Ik heb bij Boot Rialto gewerkt …

My translation:

Complete name: Zwartepoorte Specialiteit: BMW … This company has been declared bankrupt, it has been acquired by the motordealer I have worked for Boat Rialto …

One way to do as the judge ordered is to take down the complete page with information about the company Zwartepoorte. That is what seems to have happened now. Another solution would be to use code language such as is common with the word pr0n.

Clearly the combination of words and the quote in question will show up all over the Web so I don’t see any benefits for the company in question to have won this case. And of course, the judgment (the reasoning of the Court will be published on 27 May 2009) does not make any sense, from a tort law or from a technology perspective. A reason could be that the defendant appeared in person.

I am fascinated by the idea that the existence of search engines, and Google in particular, gives websites some kind of qualified responsibility with regard to the content on their website. I see more and more examples of this, for instance the idea that personal data should be prevented from being indexed through the use of robots.txt instructions.

The French Parliament has adopted the Hadopi Act, containing the controversial three strikes provisions for illegal filesharing. La Quadrature has commentary.

In a recent hearing on the ‘future of journalism‘, news industry officials argued for an exception on antitrust restrictions. The idea is that this would allow an industry conversation that could help it to acquire some leverage to squeeze money out of news search services and aggregators.

Today, the Dutch National Bank took the easy way out of the political swamp of security problems surrounding the Dutch public transport smart card. According to the DNB, a change in EU regulations means the payment system does not need the approval of the bank. Interestingly, the media now concludes (in dutch - with audio) that this means the system can be implemented without changes to the security architecture.

The European Parliament has just carried for the second time amendment 138 that aims to offer internet users protection against disconnection and other interferences with fundamental rights:

(fb) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened, in which case the ruling may be subsequent.

This meant the compromise between the Council and the Parliament, which had weakened the protection was not adopted. The Greens and ALDE (which withdrew their support for the compromise just before the vote) called for a procedural but very important change to the voting order. The EP president Wallis agreed that the EP should again vote on the original and retabled amendment, because of its political importance. The EP than adopted it. It can be expected that its adoption will bring the Parliament in collision with the Council, which threatened the Parliament not to destroy the 1.5 year work on the review with its (supposedly) radical stance on internet freedom. The amendment severely restricts France in its plans to adopt its three strikes regime for copyright infringers.

The parliament also adopted several amendments from the Harbour report weakening net neutrality.

UPDATE

Monica Horten:

European Parliament rejects Telecoms Package

The Telecoms Package will go to a third reading following the vote in favour of a users rights amendment by the European Parliament this afternoon. The original Amendment 138 passed with 407 in favour, 57 against and 151 abstentions. The vote means that the EU debate on the future of the Internet and civil liberties will continue into the Swedish Presidency, with the possibility that a solution can be found which is acceptable to users and to industry.

**Catherine Trautmann: “When a single point of the “compromise” was not adopted, the whole Package will go to Conciliation”

**European Parliament President: “I think the Parliament has understood the consequences of what it has done”

The vote was tense. Rebecca Harms (German, Greens) spoke twice to change the order on the voting list, which had been set up to mitigate against the adoption of Amendment 138. She looked nervous as she did so. Alexander Alvaro, (German, ALDE) also spoke and asked for the voting order to be changed. The President agreed to the change on the basis of Rule 155. MEPS were given extra time to make their vote, and the vote was recorded electronically, so that the names of the MEPS will be available showing how they voted. The large number of abstentions could mean that many MEPs were opposed to the “compromise” but were too frightened to vote in favour of Amendment 138.

PC Impact:

L’amendement Bono une nouvelle fois voté et plébiscité! Bono en concert!

Selon les informations qui viennent de Bruxelles, malgré une énorme pression sur les dernières heures, l’amendent 138 a été adopté ! Selon les premiers détails, il y a une demande des Verts de réinverser l’ordre du vote en faisant passer le 138 devant l’amendement Trautmann. Une première inversion avait eu lieu voilà quelques jours où, au surplus, une mention indiquait que l’adoption de l’amendement de compromis Trautamnn faisait automatiquement tomber le 138. La présidente ALDE Rebecca Harms a senti la trappe et est revenue sur un ordre plus logique.

Conclusion ? L’amendement Bono a été voté à 404 voix pour, et 57 contre, avec donc énormément d’abstentions !

Et maintenant ? Tout le Paquet Télécom est repoussé ! Il va donc repasser en conciliation en troisième lecture à la rentrée, avec de nouveaux échanges avec le Conseil. « On rempile pour 3 ou 6 mois de Paquet télécom » nous confie à chaud Jérémie Zimmermann, cofondateur de la Quadrature. Pour lui pas de doute, « c’est une formidable victoire, le fruit d’une mobilisation exemplaire au travers de toute l’Europe qui a montré l’importance des libertés numériques. Les débats ont permis d’affirmer que l’accès Internet est bien un droit fondamental en totale contradiction avec le projet Hadoi actuellement débattu à l’Assemblée nationale. Ce vote finit d’achever Hadopi ! »

L’amendement 138 qui fut redéposé par les Verts et défendu également par « son père », Guy Bono, dit qu’ « aucune restriction ne peut être imposée aux droits et libertés fondamentaux des utilisateurs finaux sans décision préalable des autorités judiciaires ».

Heise online reports from a RIPE conference in Amsterdam, that the Dutch Government Agency CIOT has called for extension of their current database (with personal data on Internet users) with data to be retained because of the implementation of the data retention directive.

The implementation law is currently waiting for a plenary debate in the senate, which is planned to take place on 23 June 2009.

The American Library Associations have filed their amicus brief to the Google Books Settlement approval procedure. They call for strong judicial oversight, stronger guarantees against possible abuse of market power, and more emphasis on intellectual freedom and privacy protection.

I have been following the settlement proceedings, mostly through James Grimmelmann’s efforts, and was looking forward to the libraries’ position on privacy and intellectual freedom. I have to admit that I am a little disappointed.

On privacy, the brief concludes:

In response to concerns raised by libraries and others, Google has stated that it will take appropriate measures to protect user privacy. The Library Associations expect Google, in consultation with the Library Associations and other representatives of user interests, to meet this commitment. Google and the Registry should develop strong policies to protect personally identifiable information, and provide users with clear notice describing those policies.

In other words the brief does not call for limitations on the registration of individual reading habits or the further use of such information. And the problem that the brief does not address is the lack of protection against government access under US law. Without legislative action, the reading records that would be collected by Google are accessible with a simple subpoena. Google and the Registry can settle what they want, and the court can approve what it wants, they cannot offer additional protection under US law against access by law enforcement and national security agencies.

On intellectual freedom, a library term for freedom of expression and information, the brief discusses Google’s discretion to exclude books for editorial and non-editorial reasons. A recent debate over library censorship shows how real these concerns are in the United States. The brief notes:

While Google on its own might not choose to exclude books, it probably will find itself under pressure from state and local governments or interest groups to censor books that discuss topics such as alternative lifestyles or evolution. After all, the Library Project will allow minors to access up to 20% of the text of millions of books from the computers in their bedrooms and to read the full text of these books from the public access terminals in their libraries. Although public libraries have often contended with demands to eliminate or restrict access to specific books, any collection management decision by a particular librarian affected only that community.

What the brief fails to notice, is that the books in the Google Books Program are already available somewhere in a United States library. One would expect this to mean that the material is legal and suitable for American readers, from a librarian’s perspective at least. Why would libraries agree to an extra round of editorial discretion with regard to material that has been carefully selected already?

The remedy proposed in the brief is accountability through transparency. The Court, overseeing the settlement, should be able to direct Google to provide a list of excluded books with a motivation for these exclusions. This will probably be enough for Google to think twice about excluding books for bad reasons, but I would have expected libraries to take a stronger stand on (private) censorship and simply oppose the removal of books from Google Books because they would be unsuitable for children.

The respectable LSE professor Willem Buiter has ‘taken up’ the debate on regulating search and is all in favor. In fact, he proposes to regulate Google (not search), and more precisely to break it up and put it out of business if possible.

I must say that I do like his style of writing and I agree that Google’s treatment of privacy and copyright are important issues to discuss. But unfortunately, the content of the essay is not all of high quality: it’s a kind of Google bashing that could ultimately do more harm than good, because the debate about Google in Europe needs economists like Buiter to explain what’s going on or even better to lay out a vision for the policies and laws of the future.

Copyright and theft

I have a particular problem with Buiter’s claims about copyright and Google. He claims that some of Google’s services are (or should be) illegal under copyright law:

Google has been making available copyrighted material for download on its websites for years (books through Google Books, music through YouTube, newspaper material through Google News), often without obtaining prior consent of the copyright holder and generally without making any payments to the copyright holders. There is a word for that kind of behaviour: theft. Just because you steal using internet technology does not make it anything other than theft. As an author, this naturally concerns me.

It’s hard to defend that YouTube is illegal altogether, simply because users can upload infringing videos. In addition, Youtube is more and more positioning itself as a partner for the audiovisual industry, because it seems need them to monetize the service. It would be helpful to get an economic perspective on that.

The Google Book Search scanning program is more complicated. From Buiter, one would expect an analysis of the public welfare benefits of a comprehensive full-text book search service.

Finally, the word ‘theft’ obfuscates the nature of the protection of intellectual labor through legally enforced monopolies for a period of time. This protection can hardly be called property. It’s not unfair to profit from each others intellectual work. The whole idea of copyright protection is to make it profitable for society as a whole. A university professor and successful author should know that.

With these superficial remarks Buiter does not add anything to the debate about copyright and Google, other than his name and some exaggerated qualifications in defense of an industry that opposes change but should be looking for answers instead. His claims are normative without economic foundation. If anything, the news, music and publishing industry probably need the platforms provided by companies like Google and Yahoo to retain some control over consumption of creative products.

Privacy

Buiter’s complaints about privacy and the importance of default settings are more to the point. He is rightly concerned about the unprecedented collection of user data by companies like Google and Yahoo and the access to that information by government agencies. But I dislike and distrust his reference to the maltreatment of copyright in this context. Politically, these issues are of a completely different nature.

Can we trust Google not to abuse the information they collect? Of course not. This is a profit-seeking company. Its owners, CEO and top managers are typical amoral capitalists who want to make as much money as they can without ending up in jail. Their ruthless, unethical behaviour as regards copyright, Of course we cannot trust them. They must be regulated and restrained by law so we can sleep at ease even though we know we cannot trust them.

I do agree that Google and others should develop an anonymous search experience and use an opt-in for their behavioral targeting program because I think that access to information and ideas should remain free (as in freedom). But default settings are hard to regulate, as an economist should know, because there are so many different products and services, default settings are part of the innovation, it’s partly a matter of technological design and legally speaking contractual freedom poses a hurdle to reckon with. It’s to simple to compare this with H-bombs. This is precisely the type of ‘do no evil’ engineering ethics that makes it harder and not easier to debate the real issues.

Buiter’s opt-out?

Buiter finishes his rant by claiming that he will start deleting everything from Google. Maybe he should also ask the FT to remove his blog from Google search (by adding its directory to this file), remove his website and publications, and tell his agent to stop advertising his speaker qualities through Adwords. Or maybe Google does offer something valuable? I hope Buiter will reconsider and come up with some more realistic proposals.

(sidenote: I took the first part of the title from a reaction to his article at the FT site.)