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EU High Court Takes the Defamation Morass a Step Further

May 13, 2014 in Economics

By Jeff Deist


The European Court of Justice in Brussels issued a preliminary ruling today that appears to have underlying implications for intellectual property and defamation concepts.

Under this ruling, search engines like Google operating in Europe may be required to remove links to online content deemed unflattering by a user– even if true. And while the article focuses on European attitudes toward privacy, the underlying issue is defamation, i.e. damage to one’s reputation.

If the company in question refuses to remove such links, will the aggrieved party’s remedy be a tort suit for damages? Or will the EU simply provide the regulatory/legal means for compelling specific performance on the part of the company?

Note that search engines don’t “own,” host, or control the unflattering content in question, they merely direct searchers to a list of results from a particular query.  So what, precisely, is the legal theory that justifies compelling a search company not to direct eyeballs to content which exists anyway? American common law recognizes third-party tort liability concepts (e.g. tortious interference with contract)  and third party defamation concepts (e.g. liability for republication), but neither directly apply here even if this was a US case.  In the absence of a common law theory, the court relies on a vague 1995 “privacy” directive, but undoubtedly the court (at least to some extent) is making law on the fly.

Social media sites, by contrast, do host their own content.  But does that content– however unflattering– become the website’s “property” by virtue of user agreements? If so, does the site’s right to control dissemination of its intellectual property outweigh an individual’s “privacy” rights?  In Europe, I’m guessing the answer is no.

As usual, IP and defamation provide an unworkable framework for resolving disputes.  We’re back to well-trodden, fundamental arguments about defamation law, which attempts to grant property rights in one’s own reputation.  But of course one’s reputation is nothing more than the thoughts, opinions, feelings, and attitudes of others– which cannot be owned by the aggrieved party.  Intellectual property concepts don’t help much either, especially when applied to non-scarce online content (i.e. we’re not running out of Instagram photos).

Austrians are not monolithic on IP and defamation.  See Rothbard, Rothbard againKinsella, and Shaffer.  Decide for yourself.

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