In the middle of December, a French appeals court published its verdict in a case concerning Google’s instant/autocomplete/suggest feature and the company was fined $65K. After the holidays, a couple of publications (e.g. searchengineland and Ars Technica) picked up the story and as in every case where French legislation diverts from US sensibilities the comment sections erupted with chauvinistic righteousness. What was the case about? Here is the full text of a notice by the Courthouse News Service:
A French court fined Google $65,000 because the search engine’s autocomplete function prompts the French word for crook when users type the name of a certain company. Lyonnaise de Garantie, an insurance company, said staffers at Google should have monitored linked words better. Google had argued that it was not liable since the word, added under Google Suggest, was the result of an automatic algorithm and did not come from human thought. A Paris court ruled against Google, however, pointing out that the search engine ignored requests to remove the offending word – “escroc,” which means crook in French. In addition to the fine, Google must also remove the term from searches associated with Lyonnaise de Garantie.
Unfortunately, this is basically all the information that circulated in English. But it’s always interesting to have a closer look at how lawmakers and judges look at information-systems-as-media question and so I went to have a look at the text of the actual verdict.
There are a couple of points that are really quite remarkable here, and make the case much more interesting than it appears. Google’s arguments basically made three arguments:
- We are an American company and therefore… (I will not go into the questions that are not specific to Web search.)
- The suggest feature is purely “informatic” and does not represent an “intellectual act”, a “value judgement” or an “opinion”. (This is the common argument, nothing new here.)
- The “average internet user” knows that search suggestions are not content. In fact, users do not make any interpretations independently from search results. There is “no confusion in their minds” about the difference. (Finally, things are getting more interesting!)
The judge however did not see things this way and made a series of quite remarkable observations:
- If the process is fully automated, how does Google remove “offensive” and “vulgar” terms from the suggestion lists? Obviously, intervention is possible and regularly applied, even for content – such as vulgarity – that is not illegal. So why not in this case?
- While it would certainly be difficult to find all cases where individuals or companies are put in a bad light in a suggest list, Google was perfectly aware in this case, because the company in question had contacted them repeatedly.
- While the procedure may be automatic, the phrase “Lyonnaise de Garantie escroc” is a human judgement and its circulation on the net is made possible by the machinery. Using algorithms is just another way of “organizing and presenting human thought”.
- The phase appears already at the moment when one types “Lyonnaise de G” and this “suddenness” has the effect of “imposing the expression” on the user.
- When looking at the results for the query, they do not explain why the term “escroc” is attributed to the company, i.e. the content does not signal any facts that would justify the term.
Now these are some interesting arguments and while I am not qualified to comment on the validity of the judgement, there is a stark contrast between Google’s and the judge’s framing of the question. While Google makes an ontological argument (“an algorithm cannot have an opinion”), the judge pushes that argument into the background and bases the verdict on the question “can Google be bothered to remove a text that is injurious?”. The answer is “yes”, because a) intervention is obviously possible and b) they were made aware by the plaintiff. It also treats the “instant” feature as living up to its former name: “suggest”.
While regulation of “indecency” is much less pronounced in Europe than in the US, libel laws are of course much stricter, but I do not want to comment on that. What I find thoroughly fascinating about this case is that legal professionals are forced to form opinions about questions as ambiguous as algorithmic agency. By choosing to judge outcomes rather than methodology, the judge in this case (and the judges that treated it in the first instance) have created a precedent that may affect the use of statistical and other techniques that often produce unforeseeable effects. On the other hand side, the verdict is largely based on the fact the the plaintiffs requests for removal were ignored. Google is by no means forced to police suggest features in the future.
Automated information systems order information very differently from manually compiled catalogs or category systems. They produce different forms of “intelligence” and it is difficult to think about their directness in terms of opinion or partisanship. What just happened in this case however is that, at least on a legal level, the gap between the two elements was closed a little bit. The judge did not require Google to put the algorithm on a leash but told them to pick up its mess.