Have you ever been impressed with the ability of Google to read your mind when you type a phrase into the search box and it finishes off your sentence?
This 'auto-complete' facility on the world's most used search engine has been subject to worldwide criticism over the last few years and most recently has found itself the subject of scrutiny in Germany's Federal Court, the Bundesgerichtshof.
In an important decision for purveyors of online content, the German Court has ruled in a claim brought by 'anon' that in the event Google is notified of defamatory auto-completed suggestions, it must remove the defamatory automated algorithm connections. In this case, the unidentified man felt that he was subject to defamatory insinuations when 'Scientology' and 'fraud' were linked with his name on the search engine.
Another high profile German claim has been brought by Bettina Wulff (wife of former German President, Christian Wulff) who has objected to the automated connection with prostitution and escort services when her name is typed into Google's search box.
In Japan, Google was ordered to remove search terms which unjustifiably linked an individual to criminality and was ordered to pay 300,000 Yen (about £2,000) for pain and suffering caused.
It's not just individuals who have raised concerns about this seemingly intuitive function.
An insurance company in France raised objections to the automation of the word 'escroc' (which roughly translates as 'crook') when its company name is typed into the search engine. Google failed to react when notified of the illegal content and was fined around #50,000.
Spain's Data Protection Authority has considered whether the auto-generated terms could be 'personal data' within the meaning of its national data protection legislation (and the relevant EU Directive). In this case, the word 'gay' automatically appeared after an individual's name. The individual found this offensive and defamatory.
In concluding that the auto-complete function could amount to a breach of data protection, the Spanish Authority had to consider three questions:
- Can the auto-complete results be considered as personal data?
- Does Google process this personal data?
- Google the data controller of the processed personal data?
The answer to all three questions was 'yes'.
Google's defences to claims resulting from the auto-complete function have so far centred on the fact that the automated results are not manually inputted, but are generated by an automatic algorithm and are akin to user generated content. Google also raises arguments relating to the need to strike a balance between rights of privacy and reputation and that of freedom of expression.
Google will, in Germany at least, now be expected to remove any defamatory automated word combinations once they have been notified of them. The usual 'notice and takedown' principles will apply requiring them to be reactive rather than pro-active upon notification.
Time will tell whether the English courts and those of other European countries will follow suit.