Search engine liability in the UK and the right to freedom of expression under Article 10 of the ECHR

Abstract

This paper critically assesses the compatibility of the potential future UK legislation concerning search engines with Article 10 of the European Convention on Human Rights (ECHR). It argues that the possible introduction of anti-copyright infringement measures such as promotion and demotion of search results, voluntarily complying with website- blocking injunctions, and removing AutoComplete suggestions, might actually lead to undesirable censorship of legitimate sources of published material, by the private sector. It draws upon multiple primary and secondary sources, including the European Court of Human Rights (ECtHR) case-law, the Court of Justice of European Union’s (CJEU) case-law, Intellectual Property Adviser Mike Weatherley’s papers on search and piracy and ‘follow the money’ initiatives, and Google’s reports. This paper focuses on the three-parts of the ECtHR’s non-cumulative test in an effort to establish whether the potential future UK legislation concerning search engines: firstly, is ‘prescribed by law;’ secondly, pursues one or more legitimate aims included in Article 10(2) of the ECHR; and thirdly, is ‘necessary’ and ‘proportionate’, in order to determine whether this constitutes a violation of a subscriber, user and site operator’s right to freedom of expression under Article 10 of the Convention. It concludes that unless the implementation of the potential future UK legislation concerning search engines: firstly, was limited in scope; secondly, expressly set out a specific obligation for the UK courts to assess whether the introduction of search result technical measures was necessary; and thirdly, was compliant with the ECtHR necessity, proportionality and adequacy principles, it could infringe part one and part three of the ECtHR’s test, thereby violating subscribers, users and site operators’ Article 10 ECHR rights.