Defamation / Reputation
Pando de Mercado v. Gente Grossa SRL
Closed Contracts Expression
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Daniel Hegglin, an English businessman who worked for Morgan Stanley and lives in Hong Kong, sued Google for distributing defamatory search results about him. Although this matter eventually settled in undisclosed terms before proceeding to trial, court filings and judgments set forth in great detail Hegglin’s allegations as well as the laws under which he brought his claims.
According to Hegglin’s claim form, which he filed in the High Court of Justice, Queen’s Bench Division, on June 20, 2014, Hegglin became the victim of “abusive and defamatory allegations” contained on websites that could be reached through a Google search. The defamatory statements included allegations that Hegglin was “a murderer, a Nazi, a Ku Klux Klan sympathiser, a paedophile, a corrupt businessman . . . an insider trader,” and a member of the Mafia.
Hegglin sought a wide range of relief in this lawsuit. For example, not only did Hegglin demand that Google release any information regarding the identity of who was publishing the defamatory statements, he also asked Google to remove any such defamatory results from a user’s search query.
Hegglin sought judicial relief in the form of an injunction which would prevent Google from publishing in its search results any websites or electronic information that defamed Hegglin. Hegglin filed in the English courts because, as he claimed, that is where Google as well as the “unknown person(s)” who wrote and published the defamatory information committed their tortious acts and where Hegglin “sustained damages.” Although Google attempted to have the case dismissed for lack of jurisdiction, in a Judgment dated July 31, 2014, Mr. Justice Bean rejected this argument and instead found that since Hegglin had business and personal ties to the jurisdiction, “the defamatory material damages or risks damaging his reputation [in the United Kingdom].”
Mr. Justice Bean, the same judicial arbiter that rejected Google’s argument to dismiss the case due to lack of jurisdiction, set a five-day trial on this matter for November 24, 2014. However, as a variety of news outlets reported that day, when the parties and their legal counsel appeared before Mr. Justice Jay for trial, one of Hegglin’s attorney informed the judge that the parties had reached an out-of-court settlement. Specifically, Hugh Tomlinson QC told Mr. Justice Jay that “[w]hilst I am not in a position to disclose the details, I am pleased to report that the parties have now settled the matter.” Tomlinson went on to state that the settlement included commitments by Google to remove the defamatory material from its hosted websites and search results.
Google’s attorney, Anthony White QC also added that Google was sympathetic towards Hegglin’s situation in terms of the “prominence and volume” of the defamatory attacks alleged against him. Although, as White added, Google could not be responsible for “policing” the Internet, the search engine would make every effort to remove content that breaches a particular jurisdiction’s laws on privacy and defamation.
The settlement was almost undoubtedly reached due to the jurisprudence set forth by the European Court of Justice (ECJ) on May 13, 2014 in the “Costeja case.” There, the ECJ held that protected individuals have the “right to be forgotten” and that, in that case, the plaintiff, Costeja, had the right to demand that Google remove any links to a foreclosure involving Costeja which was published in a newspaper sixteen years prior.
There is little doubt that Google’s attorneys compared the facts in the Costeja to those involving Hegglin and decided that the search engine would almost certainly lose if Hegglin’s lawsuit proceeded to trial. Specifically, if Costeja was able to remove search results related to matters that occurred, in a single instance, sixteen years before he brought his claim, Hegglin would prevail in his demands to remove several thousand vicious links that had only recently been published. Although the details of the settlement were not disclosed, the agreement between the parties probably included commitments by Google to remove all defamatory statements; there is no indication that Hegglin would receive any monetary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although Google settled this case – a lawsuit which, given recent ECJ jurisprudence, it knew it would lose – the settlement still contracts expression because it led to the removal of written expression from Google search results. It was undisputed by the parties that the attacks were vicious and had no basis in truth; however, there can also be little dispute that the settlement abrogated the free expression of Google and even the “unknown authors” who wrote the defamatory material. Of course, courts must always weigh this freedom of expression against an individual’s right to seek redress for defamatory statements, but the removal of thousands of links from the Internet obviously limits the content available to a Google search user.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
European Parliament and Council Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
UK Act of Parliament, 1998. Section 10 concerns the right to prevent processing likely to cause damage or distress. Article 14 concerns rectification, blocking, erasure, and destruction.
Case significance refers to how influential the case is and how its significance changes over time.
The case, because it was settled, does not create any precedent in the traditional legal sense of the word. However, by settling out-of-court, Google is certainly sending a message that other litigants who are the victim of defamatory material published in a Google search result may also be able to successfully sue Google in a court of law and settle as well.
Let us know if you notice errors or if the case analysis needs revision.