JEFFREY
MILLER
A lot of people think Google
Suggest should keep its insinuations to itself. In fact, courts in
France have recently ordered it to
mind its own business, in the
strictest sense of the phrase.
Suggest purports to help you
when you start typing words into
the Google search engine. Often
the effect is like having somebody
cut you off in mid-sentence to
totally misconstrue what you’re
about to say. Imagine, for
example, that you want to look for
the judgment in M. X / Google
Inc., Eric S. et Google France, as I
did. You don’t know the exact title
of this Paris libel action, but
you’ve read that Eric Schmidt,
CEO of Google, was one of the
defendants. So you decide to type
in “Eric Schmidt Google defama-
tion.” Once you type “Eric Schm,”
Suggest suggests “Eric Schmidt
Google.” Also “Eric Schmidt
quotes,” “Eric Schmidt e-mail,”
“Eric Schmidt mistress,” “Eric
Schmidt Utah...”
Interestingly, particularly in
light of Google’s defence in the
case, if you go ahead and type in
“Eric Schmidt Google defama-
tion,” Suggest reports “No results.”
When you actually hit “Enter” to
do that search, you get plenty,
though, with links to articles
describing, inter alia, how in
2008 a French court convicted
plaintiff X of the corruption of a
minor and sentenced him to four
years in prison, suspended to one,
plus a fine of 10,000 Euros. The
Paris Court of Appeal amended
the sentence to three years sus-
pended and 50,000 Euros. X has
a further appeal pending.
Google “Suggest” purports to help you when you start typing words into the search engine.
When he recently did a Google
search on himself, Suggest and
Google’s “Related searches” advis-
ory suggested search terms such
as “M. X condamné,” “M. X satan-
iste,” “M. X prison,” “M. X vio-
leur.” That is, they associated “Mr.
X,” under his real name, with
“convicted,” “satanist,” “prison,”
and “rapist.”
X complained to Schmidt and
Google in both France and the
U.S. According to a judgment
released by Le Tribunal de Grande
Instance de Paris at the end of
September, Google replied that
its search suggestions came from
“an automated system drawing on
a database that catalogues the
search terms employed most
often by Internet users.” There
was, Google insisted, no human
intervention.
The court did not buy this
defence. It found that the auto-
mated system was created by
people: human intervention was
“Internet culture
confuses licence with
democracy, such that
the most reflexive,
idiotic, and malicious
impulses frequently
overwhelm decency
and thoughtfulness.
done that, to instigate a snow-
ball effect, all the more prejudi-
cial insofar as the most eye-
catching terms could be found
that much more quickly in the
searches proposed.”
As well, the court found Goo-
gle had not complied with Google
Inc./Direct Energy. Direct Energy
complained that, when someone
typed its name into the Google
search box, Suggest suggested
“Direct Energy arnaque” – “Direct
Energy rip-off.” The Court of
Appeal for Central Paris held, on
Dec. 4, 2009, that in the future
Google was to guard against sug-
gestions “that could offend a large
number of users.” In X, Google
France was exonerated on the
ground that, in accordance with
Direct Energy, its site specifically
asks users to report searches “that
should not be suggested.”
The X court has ordered
Schmidt to “take all measures” to
remove the offending terms from
Google Suggest and Related
searches. It also declared
Schmidt and Google Inc. jointly
and severally liable to X for one
Euro in compensatory damages,
5,000 Euros for X’s out-of-
pocket legal expenses, and all
other costs of the action.
a necessary component. As well,
the system produced somewhat
different suggestions on Suggest
and “Related searches,” while
competitor Yahoo’s comparable
system produced yet other suggestions. The Google suggestions tended to “create curiosity
regarding the proposed or suggested themes, or tended to call
attention to them and, having
Jeffrey Miller is a writer, free-
lance translator (French-Eng-
lish), and an adjunct professor of
law and literature in the Univer-
sity of Western Ontario’s law fac-
ulty. His latest book is Murder on
the Rebound, a comic novel set in
the legal community.
We want to hear from you!
E-mail us at: tlw@lexisnexis.ca
Decision not ‘panacea’ for all pension cases
Burke
Continued From Page 3
panies that are selling assets, the
court emphasized that this par-
ticular decision depended on the
text and context of the particular
pension plan in question. “An
analysis of that documentation
leads to the finding that the
employees are not entitled to any
portion of the surplus on their
transfer to [North West Com-
pany],” wrote Justice Rothstein.
“This decision does not purport to
deal with other situations involv-
ing actuarial surplus and plan
transfer. Each situation must be
evaluated on a case-by-case basis.”
Given this approach, Ledger
noted that the decision does not
offer a “panacea” that can be
applied generally for pension cases.
However, he added that there are
some broad principles that can be
taken from the case. These include
that members have no right to a
“cushion of surplus”, nor can they
rely on a reasonable expectation
when their former employer vol-
untarily enhanced its plan.
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at www.lawyersweekly.ca
Reasons: Burke v. Hudson’s Bay Co., [2010]
S.C.J. No. 34.
