March 1, 2010
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FRANCE: Decisions on Google Suggest: Act 2!
The first two judgments of French courts regarding Google Suggest terms (see INTA Bulletin Vol. 64 No. 20, November 1, 2009) are the subject of newly issued decisions.
On December 9, 2009, the Paris Court of Appeal confirmed the findings of the first instance court as to Google’s liability. However, it amended the previous decision as to the measure ordered.
In this matter, Direct Energie complained that a Google search for “direct energie” generated “direct energie arnaque” (“direct energie rip-off”) as the first suggestion. Direct Energie requested before the court that Google delete the wording “arnaque” (“rip-off”) from the suggestions when “Direct Energie” was typed in by Internet users. The Court of First Instance granted the claim and ordered on May 7, 2009, the removal of the whole expression “Direct Energie – arnaque” from the list of suggestions.
The Court of Appeal confirmed that the juxtaposition of a name of a company with the word “arnaque” was detrimental to the reputation and the image of the plaintiff. However, it considered that even a medium-care user would not understand that the proposals appearing through Google Suggest were based on previous inquiries of Internet users. Consequently the appellate court amended the first instance decision by
1. Requesting that Google explain on its home page how the list of suggestions is made up; and
2. Cancelling the initial order that Google delete the expression “Direct Energie – arnaque” from the list of suggestions.
In a second matter, the Court of First Instance of Paris decided on December 4, 2009, that the suggestion “CNFDI arnaque” (“CNFDI rip-off”) displayed while searching for the plaintiff’s name on Google was an affront under the provisions of the law of July 29, 1881, concerning freedom of the press.
For the court, the wording arnaque was injurious and did not convey any factual information. Google voluntarily excluded, for instance, pornographic terms or those inciting violence. Also, Internet users were asked to report queries that should not be suggested. The management and control of the database remained in the hands of Google, and Google was responsible.
This decision takes a position totally opposite from the Paris Court of First Instance’s ruling in the very same matter under a summary and extraordinary proceeding (Référé) on July 10, 2009. The addition of arnaque had not been regarded as an affront in that case because the suggestion relied on evidence and real results of past searches performed by Internet users and was consequently a reliable support for the broadcast of freedom of thought and information.
As the second stage, these decisions concur in finding Google’s liability and show less disparity than the first judgments. However, the French case law is still uncertain on these issues.
Although every effort has been made to verify the accuracy of items carried in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
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