Destructive reaction: can I make a harmful message disappear? (cont’d)
(d) Location: harmful message on search engines
Today, approximately 90% of web users use a search engine to find information regarding companies, brands and products [Note: See Fleishman Hillard & Harris Interactive, Understanding the role of the Internet in the lives of consumers – 2012 Digital Influence Index, p. 11 (available online).]. As a result, contacting a search engine or trying to modify the order in which the message appears in search results can be very effective.
For instance, there are several methods for limiting access to a link on Google (main search engine in Belgium) [Note: For practical reasons, this website does not cover other search engines, whose popularity is far lesser in Belgium (see for instance NetMarketShare, Search Engine Market Share, available online).]:
(i) Removal of a search result
As a hosting intermediary in relation to the list of results of a Google search [Note: ECJ, 23 March 2010, Google France SARL & Google Inc. v Louis Vuitton Malletier SA e.a., cases C-236/08 through C-238/08, §§106-120 (available online).], Google makes it possible for anyone to submit a complaint requesting the removal of content from Google searches.
Through submitting a form [Note: view form.], Janssens-Quidam could therefore have informed Google of the existence of ‘defamatory content’.
Provided proper justification is given in the form, it is thus possible to obtain the removal of access to the relevant content. It is possible, however, that such removal of access will only be temporary if the content is not also removed from the relevant website (as Google may stumble upon the content once more and therefore automatically include it as a search result).
It is nevertheless worth noting that Google, often a self-proclaimed champion of freedom of expression, makes an in-depth examination of the justification provided. Save in the presence of a judgment declaring that the message is unlawful, a request concerning a message that is not obviously defamatory will therefore likely be rejected.
In case of refusal, it remains possible for the company to claim before the courts that Google should be held liable.
(ii) Influence on the order of results
One method that can be effective is the act of influencing the PageRank of the harmful message (i.e. its position in the results) by ensuring that other, new results appear in Google searches, so as to ‘drown’ the message among positive messages.
The company can for instance create web pages containing the relevant keywords. In such case, however, this technique can also backfire against the company if Google notices the manipulation of results by the company (Google could thus penalise the PageRank of pages promoted by the company) [Note: See Google, Webmaster Guidelines (available online).].
Moreover, the company can try to get newspapers, blogs, company registries etc. to talk about the company in a positive manner. A response strategy that aims to achieve a ‘negative-positive conversion’ (as described previously) can therefore also contribute to drowning the negative message.
To illustrate, by making some form of announcement, Janssens-Quidam could have created search results that would have appeared higher than Patrick’s harmful article in the order of search results.
(iii) Removal of search suggestions
Leon had noticed that Patrick’s article was one of the first results for a search for ‘Janssens-Quidam’. A few additional search attempts had revealed search suggestions that were just as alarming:
These search suggestions, the result of the ‘Google Suggest’ functionality, can in and of themselves be deemed to be harmful.
In Belgium, case law has already considered it ‘likely’ that the suggested terms could, under certain circumstances, be deemed to be advertising [Note: President of the Court of First Instance of Leuven, 1 March 2007, Jaarboek Handelspraktijken & Mededinging 2007, p. 783.]. However, there has not yet been any case law on the liability of Google for terms displayed by ‘Google Suggest’.
If one considers Google as a hosting intermediary for the terms generated on the basis of searches made by web users [Note: By analogy with Google’s role as hosting intermediary in relation to the search result list – see above.], one can reasonably expect that Google will be deemed liable for unlawful (defamatory etc.) suggestions as from the moment on which it was informed of this unlawful nature and provided it did not react expeditiously to remove the content in question [Note: For an analysis of trends in Europe in this respect, see R. Mathys & V Zogg, ‘Court denies unlawful infringement of personality through Google Suggest’, 21 August 2012 (available online subject to free registration).] (see explanation regarding intermediaries).
Consequently, it is in our view possible to use Google’s complaint form to this end, just as it remains possible to initiate proceedings against Google in this respect in the event of refusal to remove the relevant suggestions.