In the early 1990s, the proliferation of information available on the Internet and the growth of Internet-related businesses produced new challenges for the distribution and dissemination of information. As legal issues arise from widespread use of search engines, governments react by attempting to regulate the Internet sector.
The search engine operators’ growing market power and ability to control access to information trigger new legal concerns encompassing data protection, trademark and copyright infringement consumer protection, competition law, and free speech.
Both search engines and Internet-related businesses are influential factors shaping policies and laws in emerging market economies. Turkey, as an emerging market economy, is particularly concerned with search engine liability in the development of Internet laws.
Search engines are unmistakably Internet-based operations. Internet-based laws for content providers, hosting providers, and online business operators, however, can be challenging to apply to search engines. Search engines are distinct from these other operations in both objective and technology, which requires courts and legislatures to address legal issues related to search engines from a different perspective. The following cases and regulations demonstrate the pervasive search engine issues transcending jurisdictional boundaries.
American courts have addressed a significant number of claims against search engines and have developed extensive jurisprudence on search engine liability, particularly related to intellectual property disputes and defamation.
Perfect 10 v. Google involved an intellectual property conflict over a search engine’s capacity to assemble, organize, store, access, and display intellectual-property-protected “content.” The plaintiff, Perfect 10, published a magazine and operated a subscription website; it registered the images it used with the United States Copyright Office. The court while analyzing available precedents, clearly distinguished between “display” and “inline linking” which refers to use of a linked object, often an image, from one site by a web page belonging to a second site. The court held that Google did not infringe Perfect 10’s right to distribution since infringement required “actual dissemination” of the copyrighted material rather than simply facilitating access.
In Field v. Google, Blake Field filed a copyright infringement claim against Google Inc. for allowing Internet users to access copies of 51 of his registered works, which violated Field’s exclusive right to reproduce copies and distribute copies of those works. The court held in favor of Google, noting that
“If Google copies or distributes Field’s copyrighted works by allowing access to them through ‘cached’ links; Google’s conduct is fair use of those works as a matter of law.”
Courts in the United Kingdom addressed Internet law related to search engines similar to the United States. In 2009, Metropolitan International Schools Limited brought a defamation case against Designtechnica Corporation, Google UK Limited, and Google Inc ( WLR 1743). The case provided a rational basis for apportioning liability for online actions, and serves as a foundation for future cases addressing Internet activity and search engines. The court held that a search engine is “a different kind of Internet intermediary” which prevented the search engine from exercising complete control over the search terms and search results, making it a facilitator rather than a publisher. Mr Justice Eady clearly stated that the significance of notification to the proprietor of a search engine merits attention and in that regard, Google was not in a position to “take down” the offending words in the way that Metropolitan could have done.
In civil law countries, court decisions relating to search engines do not retain the same authority as in common law countries. There are, however, a few notable court decisions in Europe that demonstrate a comprehensive appreciation for the limits of search engine liability. In Palomo v. Google Inc., Spain’s Court of First Instance heard a complaint regarding search result hyperlinks to websites with defamatory content. The court rejected the claim and held that the search engine was not liable for disseminating third party content. The court’s rationale was that the search engine was unaware that the linked content was defamatory.
The legal framework regulating Internet law in Turkey is not as developed as other jurisdictions.
The growing number of Internet related issues, however, requires Turkey to evaluate its existing laws and address legal liability issues regarding search engine conduct. The Information and Communications Technologies Authority is the regulatory body addressing Internet-based issues under Law No. 5651 on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed Through Such Broadcasts (“Law No. 5651”). Law No. 5651’s purpose is to regulate the obligations and responsibilities of content providers, hosting providers, access providers, and mass use providers.
The position of search engines is questionable within the various categories of Internet actors enumerated under Law No. 5651. Attempts to categorize search engines as content providers, hosting providers, or access providers fail to incorporate the nuances of search engine functions. An “access provider” provides a user with access to the Internet. A “content provider” creates, amends, or provides information and data to Internet users. A “hosting provider” operates the system that contains services and content. Based on the key terms defined in Law No. 5651, however, search engines do not fall within the scope of an “access provider,” a “hosting provider,” or a “content provider.”
Problems ensue when legal authorities apply legal rules that are not developed to address and fulfill content removal requests. Websites and their content listed among search results are created by and uploaded by third parties; websites are owned by third parties, not the search engine operator, which makes it legally and technically impossible for search engine operators to interfere with the content. The relevant content must be removed from the original website for the content to avoid the search engine’s algorithmic formulae. The impossibility and illegality, however, does not prevent claims from being filed for non-removal of certain content from search engine results.
Another recurring issue includes requests to ban specific word searches and remove particular content from a search result. Search engine operators can neither prohibit users from using specific search terms, nor can they remove the search results related to these search terms. The existing legal rules for content and host providers are typically suggested to clarify boundaries for search engine liability, since the liability of these Internet actors is clearer.
Under Turkish law a “content provider is responsible for any kind of content it presents on the Internet” but it is not responsible for the content of third party links unless the content provider indicates its intent to provide access to the specific third party content. Law No. 5651 establishes that the content provider is responsible for content broadcasted on the Internet rather than the hosting provider. This provision should be extended to content listed among the search engine results. Since the legislature is not holding the hosting provider responsible for uploaded content, it should not be legally possible to hold a search engine operator liable for listing live content and providing organized information to users. Even if it was legally and technically possible to remove live content from search engine results, it would not be “deleted” from the Internet because it would still be broadcast on the relevant website. Criminal and civil liability would rest with the content provider under the scope of Law No. 5651.
However, Turkish courts in practice have nevertheless held Google liable, as a search engine operator, for removing live contents appearing on its search results. The line of thought adopted by the Turkish judges was that the respective content appearing among Google’s search term results was violating the complainant’s personal rights and was accessible; hence the courts ordered that such content be removed by Google from its search results. This line of reasoning may be criticized for equating a search engine’s obligations with those of the content providers’ and hosting providers’, as Law No. 5651 clearly states that any person who claims that his rights are violated due to content shall apply to the content provider, or to the hosting provider in cases where the content provider is not found, for removal of such content.
Although no specific regulation exists for content removal from search engine results, Law No. 5651 establishes a procedure for content removal by a content provider or host provider that could be applied to search engines. Search engine operators could potentially be liable for content removed from the original website but still appearing among search results under Article 9 of Law No. 5651.
Another topic of interest that is increasingly coming to the fore to mold how liability may or may not be attributed to search engines for online content is that of search-term suggestions. Search-term suggestion (or the “Keyword Suggestion Tool” as Google phrases) is a function of a search engine whereby a word, phrase or a website name, when typed to the search engine’s search bar, presents a list of keywords and phrases that the relevant search engine most closely relates them to the typed search-term due to frequency of search or popularity of search of the relevant term.
A 2010 decision of the Turkish criminal court of peace provides an important precedent in regards to how Turkish courts should interpret and apply the provisions of Law No. 5651 in terms of search term suggestions, in Turkey’s nascent Internet law framework. The court held that Google cannot be held responsible for search-term suggestions appearing on its search engine when the search term “recep konuk corruption” and “recep konuk’s corruptions” appear. The court reasoned that what is being requested for removal is the search term suggestions and not content as understood by Law No. 5651. The court premised its reasoning as follows:
“The removal of content which is reached through these search results can be requested from the content provider in accordance with the Law No. 5651. … [T]he obligations of the access providers are within the context of Article 6 and the request should be made to the access provider.”
Although directing the request to the access provider is not the correct procedure, the court issued an interesting decision which might be used as supporting precedent in similar removal requests for search term suggestions, as the court grants that search terms suggestions are not considered content as understood under Law No. 5651.
The role and status of search engines might continue to raise legal concerns for emerging markets, such as Turkey, considering that there is an insufficient amount of case law to shed light into how legislation is interpreted by judicial authorities. This is in part due to the young age of the Internet legislation that is in force, and also due to the lack of judicial know-how concerning matters pertaining to the Internet law vista.
The first step to eliminate such legal concerns would be the recognition that search engine operators are not responsible for the content appearing among search results. This entails a parallel understanding that search engine operators, such as Google, cannot be held responsible for unlawful content that is broadcasted on the Internet, by third parties, when such content is still live. On the other hand, search engine operators may face the risk of being held liable for unlawful content which has been already removed by the content providers, but is still appearing among a particular search engine result. Depending on various court practices, this may impose upon search engine providers the duty to take the necessary technical and legal precautions to remove such content from appearing among their search results when these contents are not live. Second, legal definitions that clearly define and set the boundaries for what types of providers are held responsible for the content broadcasted on the Internet are necessary for the letter of the law to converge with the spirit of the law. Defining search engine operators separate from content and hosting providers is an opportunity for emerging markets to harmonize with courts across the globe in recognizing that search engines are an “intermediary” to the information on the Internet.
Gönenç Gürkaynak is a partner at ELIG, Attorneys at Law, Istanbul