Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) & Ors

An automatically generated search-engine snippet does not ordinarily make the search-engine operator a publisher of defamatory material. Common-law publication requires knowing involvement, or at least an assumption of general responsibility, in the publication process. A search engine is generally a facilitator where it has no human input into the search terms, indexing or ranking. Notification of allegedly defamatory material does not itself create liability where the operator lacks control over the search terms and is taking steps to block identified URLs. The court may therefore determine that there is no reasonable prospect of success without reaching statutory defences. Permission to serve out may also be set aside where material inaccuracies or omissions were made in the ex parte application.

The claimant brought defamation proceedings concerning material published on internet forums operated by the first defendant and a search result generated by Google. The third defendant, Google Inc, was outside the jurisdiction. A Master permitted service out of the jurisdiction under CPR 6.36 and CPR 6.37.

The third defendant applied to set aside that order, contending that England was not the proper forum, that it was not responsible for publication of the search-engine snippet, that the claim had no reasonable prospect of success, and that the permission application contained material inaccuracies and omissions. The central issues were whether an automated search engine could be liable as a publisher and whether the order for service out should stand.

1. Application granted. The Master’s order permitting service out of the jurisdiction was set aside.
2. At common law, responsibility for publication of defamatory words requires knowing involvement in the process of publication, or at least an assumption of general responsibility. A person who merely performs a passive instrumental or facilitative role is not ordinarily a publisher. The principles stated in Bunt v Tilley [2007] 1 WLR 1243 were applicable.
3. Google’s search results were generated automatically by computer programmes, without human input from the third defendant. Google did not formulate the user’s search terms or meaningfully author or cause the appearance of the snippet. It was therefore a facilitator rather than a publisher at common law.
4. Notification did not alter the conclusion. Unlike a website host, a search engine could not simply remove the words from all future search results. While Google was taking steps to block identified URLs, delay in its notice-and-take-down procedure did not amount to authorisation, approval or acquiescence in continuing publication.
5. The court therefore did not need to consider the defence under Defamation Act 1996, s 1. If the third defendant had been a publisher, it was doubtful that it could satisfy s 1(1)(a), but that issue was unnecessary to decide.
6. The common-law defence of innocent dissemination had not been expressly abolished by the 1996 Act, although it had effectively been superseded. It would probably not assist a defendant after being told that the words were defamatory or arguably defamatory.
7. The Electronic Commerce (EC Directive) Regulations 2002 might cover search-engine services, but the scope of Regulations 17 to 19 was uncertain and the United Kingdom had not expressly extended those protections to search engines. The conclusion on primary liability was reached under adapted common-law principles.
8. Separately, the inaccuracies and omissions in the ex parte application were sufficiently material to justify discharge. The strict duty of full and fair disclosure applied, even where the misrepresentation was inadvertent and the Master had not considered himself materially misled. The claimant therefore had no reasonable prospect of success against the third defendant, and the permission order was set aside on both grounds.

First-instance decision. The court set aside the Master’s order permitting service out of the jurisdiction.