Publisher not liable for search engine summary, rules High Court

Even if a snippet has a libellous meaning neither the search engine nor the publisher should be liable, the Court said in a case involving the BBC.

The Court also ruled that news archives should be read in context, and that any claims for libel should take this into account.

Sam Budu took the case against the BBC over articles published on its website in 2004 which detailed his dealings with Cambridgeshire Police. The BBC argued that the case was an abuse of process and should not be allowed to proceed. The Court agreed.

The first article said that a person had been denied a job with the police despite receiving a verbal job offer because it was discovered he was an illegal immigrant.

The second and third articles named that person as Budu but detailed his counter-claims that he was in the UK legally.

As well as suing over the articles themselves, Budu sued in relation to the snippets that appeared in a Google search as a separate republication of the story.

Mrs Justice Sharp said that Budu's case on republication was not tenable on the details of this particular case, but went on to say that they should not be upheld in principle either.

The E-commerce Regulations protect information service providers from liability for the information they pass on unless they have been told that it breaks the law. It had already been established in a previous case that a search engine provider could not be liable for the publication of a snippet that it had no role in formulating. Mrs Justice Sharp said the search engine was a mere facilitator, not a publisher.

Budu said that this was unfair because if the original article with all its context was not libellous but the snippet out of context was, then a person had no recourse to legal action over that snippet if the search engine provider could not be sued.

"Liability for publication cannot accrue by default, but can only attach on principled grounds," said Mrs Justice Sharp. "If the real complaint is in respect of the original article/webpage from which the snippet is, or is said to be extracted then a claimant genuinely interested in compensation or vindication can pursue a claim, including for injunctive relief, against the original publisher of that webpage."

"It would not be appropriate or just in my view to make the publisher of the original webpage responsible in law for a snippet which makes a defamatory allegation (for example, because it detaches certain words from their context) not made in the original webpage itself," she said.

Budu also lost the right to sue over the original article, because the Court said that it would only ever be read in the context of the other two articles which made it clear that he denied the allegation that he was an illegal immigrant.

A web search on Budu's name would not reveal the existence of the first article because he was not named in it, the Court said. That meant that the only way a person could come to read it now, six years after publication, was by searching for his name, reading one of the second two articles and following a link from there to the first one.

Though the articles were published in 2004, libel cases can only be taken within a year of publication. Budu's case is based on those who might have read the articles online after May 2008.

"Does the Claimant have a case with a realistic prospect of success that there exists a cohort or even one reader, who post 2008, would have read the first article on its own and understood it to refer to him? In my view, he does not," said Mrs Justice Sharp. "The un-contradicted evidence is it will not have been accessible by anyone conducting a search using [Budu's] name except via the second and/or third articles."

"I do not think the notional reasonable reader could sensibly conclude there were in 2004 reasonable grounds to suspect [Budu] was an illegal immigrant merely because of the police's stated position, when set against trenchant and detailed factual rebuttal of it by [him]," she said. "At worst, the articles when read together are capable of meaning there were in 2004 unresolved questions about the Claimant's immigration status, which he may not have fully disclosed to the police."

The Court did not allow the case to proceed to a full trial.