COULD SUGGESTED SEARCH

DEFAMATION SURVIVE THE CDA?

A/V-Rated Internet Lawyers Could a claim for suggested search
defamation, or autocomplete defamation, survive CDA Section 230
immunity?

P: 415-795-4070 E: info@burgoynelawgroup.com
W: www.burgoynelawgroup.com
Sacramento, CA | San Francisco, CA

Ecommerce and Internet Law

Suggested search defamation, or autocomplete defamation, lawsuits have overcome legal
hurdles in at least a half-dozen other countries. Is it a matter of time before we see oneand
maybe a successful onein the United States? Or would the Communication Decency Act
effectively immunize a search engine from suggested search defamation liability.
Suggested search terms are those proposed by a search engine in response to a users prior
search query or queries. Often, such as in the case of Google, suggested search terms appear
as autocomplete suggestions, or alternative endings to the users then-current search.
Suggested search technology has been lauded as a valuable tool that helps users find more
relevant and interesting content. That same technology, however, also has caused
controversy. Social interest groups have criticized Google and others for suggesting search
terms that are offensive, racist or discriminatory. Increasingly, individuals also have
challenged suggested search termsin particular as supplied by autocomplete toolsthat
falsely suggest an association between their names and criminal, immoral or other unsavory
behavior.

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Courts in Germany, Japan, Australia, Italy and France have permitted suggested search
defamation, or autocomplete defamation, claims to proceed. Then in early August, a Hong
Kong court refused to dismiss a suggested search defamation claim brought by movie mogul
Albert Yeung Sau-shing against Google. Yeungs claim, which remains in litigation, is based on
one or more suggested search terms that juxtaposed his name and a reference to organized
crime. Among other arguments, Google had claimed it does not publish its suggested
search results. The Hong Kong court disagreed. Applying defamation law not entirely
dissimilar to that of the United States, the court concluded that any person who takes part
in making the defamatory statement known to others may be liable for it.
The Yeung case received relatively heavy coverage in entertainment and business media. The
U.S. legal press, however, all but ignored it. The seeming presumption is that no suggested
search defamation lawsuit could survive the rigors of U.S. defamation law, in particular
Section 230 of the federal Communications Decency Act. Section 230 states, [n]o provider
or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider. For purposes of Section 230,
information content providers include individual end users. The practical effect of the
almost 20-year old Section 230 has been to immunize search engines, social media providers

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and other websites from defamation and most other claims arising from user-generated
content.
Section 230s protections are not absolute. The Ninth Circuit has identified two important
prerequisites to Section 230 immunity. The first, as stated in Batzel v. Smith, is that the
defendant have reasonably believed the unlawful content was provided with the intention
that it be published. The second, as famously articulated in Fair Housing Council v.
Roommates.com, LLC, is that the defendant not have materially contribut[ed] to [the
contents] alleged unlawfulness. The Roomates.com opinion noted that search engines
would generally be entitled to Section 230 immunity because, unlike the defendant in the
Roommates. comcase, they did not force users to participate in [a] discriminatory process.
A suggested search defamation or autocomplete search defamation defendant undoubtedly
would claim immunity under Section 230. They would argue that the suggested search terms
at issue had been provided by end users and that they, as an interactive computer
service, had passed them on without material contribution. Already, in response to
suggested search defamation complaints, both major search providers (Google and
Microsoft) take that route.

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Suggested and autocomplete search terms, they claim,
are automatically generated by algorithms. Those
algorithms, they further claim, are in turn driven by the
searches and browsing habits of other end users.
As a factual predicate to a Section 230 defense,
however, the search engines positions wouldnt be
particularly strong. As is common sense, the algorithms
behind suggested search and autocomplete technology
arent black boxes. Theyre proprietary applications
devised and controlledincluding both inputs and

outputsby search engines or by those with whom they contract to provide search services.
Popular search engines already have taken steps to eliminate racist and discriminatory search
suggestions. The exercise of control as to inputs, means of selection and outputs would, at
least arguably, amount to a material contribution within the meaning of Roomates.com.

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Additionally, and as relevant to Batzel, search engines would be challenged to argue that
search engine users or others intended their content to be published as suggested search
terms. Google, for example, could point out that it receives a broad license to all content that
users submit in connection with Googles services. That broad license, Google might argue,
is tantamount to an expression of intent that all user submissions be re-published. In the
context of a practical contract of adhesion, however, that argument would seem a stretch.
Most end users would cringe at the notion that someone might publish their search history.
Googles Batzel argument would seem even worse to the extent its suggested search
algorithm considered non-user content. Absent a clearer expression of intent, a suggested
search defamation defendant seeking Section 230 immunity might fall short under Batzel,
too.
A court hearing a suggested search defamation case would have to consider the implications
of its ruling to search services other than the major search engines. At least in the search
context, courts have tended to round legal edges in favor of search providers. But what of
potential black-hat search providers who might benefit from a search-favorable ruling? How
much control over algorithmic inputs and outputs is too much? And if search providers arent
liable for arguably defamatory search suggestions, who is? Could a cadre of end

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users effectively defame someone through the repeated entry of defamatory search
suggestions, only to later claim as a defense that they didnt publish any of them?
Of course, a suggested search defamation lawsuit would face any number of additional
hurdles. Even presuming that a suggested search term constitutes a publicationand it
seems to fit the definitiona plaintiff would have to prove that the particular combination of
words, presented as an autocomplete or suggested search term, was defamatory. A search
engine would argue that suggested search terms arent intended, and so cant be
understood, as representations of fact sufficient to support a claim of defamation. A plaintiff
also would have to prove that the suggested search term at issue was understood as
referencing him and not others, and was seen by others. A search engine defendant could be
counted on to raise any number of additional defenses, including the range of Constitutional
protections afforded by New York Times v. Sullivan and related cases. Especially in an antiSLAPP jurisdiction like Californiawhere a losing defamation plaintiff may end up paying the
defendants attorneys feesthe risks would be high.

Still, based on the number of inquiries we receive from businesses and business persons
victimized by suggested search and autocomplete defamation, the chances of a test case are
significant. It only takes one motivated and sufficiently financed plaintiff to file a claim. Its at
least possible to imagine a suggested search defamation case surviving a motion to dismiss.
Burgoyne Law Group is a dedicated team of business litigation attorneys based in the Bay
Area. If you are looking for an intellectual property lawyer in San Francisco, we can help.

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P: 415-795-4070 E: info@burgoynelawgroup.com
W: www.burgoynelawgroup.com
Sacramento, CA | San Francisco, CA