Google’s Legal Agenda


Well Google has been the subject of many Slaw comments, but it’s on the legal side that it’s hit the news recently.

It won an important decision before Justice Eady of the English High Court in which the court held that Google was not liable as a publisher of defamatory comments when comments made in an internet forum about Metropolitan International Schools, a British company that operates Internet-based training courses, surfaced in the top rankings of a Google search for the company. Of course now the Schools’ highest hit is Eady’s judgment.

“When a snippet is thrown up on the user’s screen in response to his search, it points him in the direction of an entry somewhere on the Web that corresponds, to a greater or lesser extent, to the search terms he has typed in,” Justice Eady observed. “It is for him to access or not, as he chooses.”

As interesting as the judgment is how explicitly comparative it is, with the judge citing caselaw from around the world (Dutch decision in the District Court of Amsterdam on 26 April 2007: Jensen v Google Netherlands. Court of Appeal in Paris, 19 March 2009): SARL Publison System v SARL Google France Swiss decision of Subotic v Google Inc (in the First Instance Court in Geneva) and the Court of First Instance in Madrid on 13 May 2009: Palomo v Google Inc) and even Eastern European statutes – Bulgaria’s Electronic Commerce Act of December 2006 and the Romanian law of Electronic Commerce (see Article 15 of Law No 365 of 7 June 2002).

The judge must have been googling.

In an American challenge, the Electronic Frontier Foundation, the American Civil Liberties Union and the Samuelson Law, Technology and Public Policy Clinic at the University of California, Berkeley, have raised concerns about Google Books in an Open Letter to Eric Schmidt. They want privacy designed into the architecture of Google’s future.

They’ve asked Google to
limit the data it collects about users’ reading habits,
commit to protect reader records by handing them over only in response to subpoenas or court orders, and
put into effect measures giving users control of their data.

Protection Against Disclosure 1. Readers should be able to use Google books without worrying that the government or a third party is reading over their shoulder. Google needs to promise that it will protect reader records by responding only to properly-issued warrants from law enforcement and court orders from third parties, and to let readers know if anyone has demanded access to information about them.
Limited Tracking 2) : Just as readers can anonymously browse books in a library or bookstore, they should also be able to search, browse, and preview Google books without being forced to register or provide any personal information to Google. And for any of its
Google Book Search services, Google must not keep logging information longer than 30 days. Google should also not link any information it collects about reader use of Google Book Search to that reader’s usage of any other Google services without specific, affirmative consent.
3) Readers should have complete control of their purchases and purchasing data. Readers should be able to delete their records and have extensive permissions controls for their “bookshelves” or any other reading displays to prevent others from seeing their reading activities. Readers should be able to “give” books to anyone, including to themselves, without tracking. Google also should not reveal any information about Google book use to credit card processors or any other third parties.
4) Readers should know what information is being collected and maintained about them and when and why reader information has been disclosed. Google needs to develop a robust, enforceable privacy policy and publish the number and type of demands for reader information that are received on an annual basis.

Google has responded vigorously.

But as Michael Chabon, author of The Yiddish Policemen’s Union: A Novel, put it: “If there is no privacy of thought — which includes implicitly the right to read what one wants, without the approval, consent or knowledge of others — then there is no privacy, period.”

Finally on the distant radar is the prospect of an antitrust suit. Christine Varney of DoJ reportedly has concerns about a Googleopoly, as Wired calls it. Here is Wired’s take, along with a speculative take on what an antitrust suit might look like. Today’s NYT reports pushback against Ms. Varney, and Google is confident in its Code of Conduct, and in the conduct of its code, but as Microsoft can attest, antitrust issues can be mighty distracting.

And the Calgary Herald asks “is Google good for Canada?”

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