Google held to be liable for Google Suggest results
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In GROUPE JPL - CNFDI v S (December 4 2009) and Direct Energie v Google Inc (December 9 2009), two French courts have held that Google Inc was liable for the fact that the plaintiff's name was associated with the word 'arnaque' (French for 'rip-off') in the Google Suggest tool. This tool completes search terms as users type them into the search box and offers similar searches.
In the first case, Groupe JPL - CNFDI claimed that internet users searching for the term 'CNFDI' on the Google search engine were given the suggestion 'CNFDI arnaque' by the Google Suggest tool. The Court of First Instance of Paris held that this suggestion constituted an affront under the provisions of the law of July 29 1881 on the freedom of press.
According to the court, use of the word 'arnaque' was injurious. The court pointed out that the management of the Google Suggest database remained in Google's hands, as it voluntarily excluded certain terms from the searches (eg, pornographic or violent terms) and expressly invited users to report queries which they believed to be offensive. Therefore, Google's liability was engaged.
The decision represents a complete U-turn on the court's previous ruling in the same case in summary proceedings. On July 10 2009 the court had held that the addition of the word 'arnaque' to CNFDI's name was not in itself an affront, since the suggestion at issue relied on previous searches performed by internet users, and thus contributed to the freedom of speech and information (for further details please see "Google not liable for Google Suggest results, says court").
In the second case, Direct Energie claimed that when internet users searched for 'Direct Energie' on the Google search engine, the first suggestion given by the Google Suggest tool was 'Direct Energie arnaque'. It thus requested that Google delete the word 'arnaque' from the list of suggestions. On May 7 2009 the Court of First Instance ruled in favour of Direct Energie and ordered that Google remove the suggestion 'Direct Energie - arnaque' from the list.
The Paris Court of Appeal upheld the decision of the Court of First Instance insofar as the latter had found that Google was liable, but reversed the decision with regard to remedies.
The Court of Appeal confirmed that the juxtaposition of the name of a company with the word 'arnaque' was detrimental to the reputation and image of that company. However, the court considered that an internet user, exercising an average level of care, would ignore the fact that the suggestions generated by the Google Suggest tool are based on previous searches. The court thus ordered that Google provide on its home page general information enabling internet users to understand how suggestions are generated. In addition, it annulled the lower court's decision insofar as it ordered that Google delete the expression 'Direct Energie - arnaque'from the list of suggestions.
Both decisions thus concur in finding that Google’s liability was engaged. However, the case law on the Google Suggest tool must still be expanded and further decisions are awaited.
Franck Soutoul and Jean-Philippe Bresson, INLEX IP EXPERTISE, Paris
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