Technical, Automatic and Passive: Liability of Search Engines for Hosting Infringing Content in the Light of the Google ruling

• Author: Paul Przemyslaw Polanski
• Position: Kozminski University
• Pages: 42-50

JICLT

Journal of International Commercial Law and Technology

Vol. 6, Issue 1 (2011)

42

Technical, Automatic and Passive: Liability of Search Engines

for Hosting Infringing Content in the Light of the Google ruling

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dr Paul Przemysław Polanski

Kozminski University

ul. Jagiellonska 59

Warsaw 03-301

ppolanski@elaw.pl

Abstract. The p resent contribution discusses the latest ruling of the E uropean Court of

Justice in the case of Google, which may have deeper consequences for advertisers relying on

AdWords service, as well as for providers of similar services around the globe. T he Court ruling

may turn out to be even more important for Web 2.0 service providers as it seems to have opened

the possibility of applying fo r a legal protection under Article 14 of the Ecommerce Directive.

European judges made it clear that sponsored links services are information so ciety services and

that they may fall under the sphere of application of hosting safe haven provided that their

activities are of technical, automatic and passive nature understood as a lack of knowledge or

control over the data stored. This statement is yet to be applied by French courts that will have to

establish whether Google AdWords service is really neutral and hence d eserves a special legal

treatment.

1. Introduction

Google search engine pr oduces two sets of results: natural sear ch results, which are an outcome of indexation of

billions of pages and their presentation based on sorting according to the PageRank™ algorithm, as well as

sponsored results, that are an outcome of an automated p rocess of displaying an advertisement associated with a

sought phrase.

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The for mer service is better known as AdWords, and allows advertisers to display links to their

pages, irrespective of the natural results of the query. Advertisers pay Google for the display of their ads on a

‘Price-per-Click’ basis, every time a user clicks on a di splayed link. If several advertisers select the same

keyword, their position on a sponsored hit list will be dependent upon the basis of the highest price, the amount

of earlier clicks on a given link and the quality of a commercial communication from the Go ogle's perspective

(Google case, para. 26).

Since advertisers select themselves keywords, triggering the display of sponsored links and Google does not

intervene during t he keyword selection phase, it is possible that third party rights may be infringed, particularly

when selected phrases are identical or correspond to protected trademarks (Polanski 200 9). And it was the main

theme of a long battle between French trademark holders, who claimed that both Google AdWords service, as

well as advertisers using their service infringes the law.

There are three cases, which were referred to the ECJ from the French Co ur de Cassation, and which were

joined together by the European Court. I n the case of Louis Vuitton (case C-236/08), the reputable trad emark

holder called into question the legality o f display practices where a ‘Louis Vuitto n’ keyword entered into Google

search engine triggers a display of sponsored links lead ing to sites offering counterfeit products. It is worth

stressing that Google has not blocked the possibility of selecting key words denoting counterfeit such as ‘copy’ or

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This paper was originally published in Kierkegaard, S. (2010)Private Law: Rights, Duties & Conflicts,pp.399-409.

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The Article draws on and extends an earlier contribution on the Opinion in the Google case: Polanski, P. P. (2009) Liability

of search engines for sponsored and natural results - the Case of Google, [w]: S. M. Kierkegaard (red.) Legal Discourse in

Cyberlaw and Trade, Malta: IAITL 273-285.