In a claim brought by a French collecting society, the Cour de Cassation has ordered Google to delete the keywords “Torrent”, “Rapidshare” and “Megaupload” from its auto-completion keyword suggestion tool for French users.
The basis for the injunction is that Google is facilitating — providing the ‘means’ — of infringing the claimants’ copyrights. However, the Court confirmed that Google is not itself legally responsible for any infringements taking place on sites linked to in search results, even where it suggests the query. Sensibly, this is because subsequent infringements require ‘a voluntary act of the user’.
Nevertheless, the balance of convenience favoured injunctive relief since this would provide an easy way to reduce infringement by making it more difficult for users to locate infringing materials (even though they still remain available).
The Court qualified its order by noting that it is “without … any reason to expect total efficiency”. In other words, if Google’s automated keyword de-indexing fails to remove all queries related to the infringements, it won’t be in breach of the order. This makes sense given that suggestions are generated algorithmically and not actively monitored by Google.
The decision isn’t really surprising — Google has already been filtering certain keywords (mostly relating to pornographic, illegal and infringing materials) from autocomplete since mid-2010. However, it does confirm the Court’s power to grant an injunction under the Enforcement Directive if Google’s voluntary removal doesn’t go far enough.
That being said, from the Court’s judgment, it is unclear whether it paid any regard to the article 10 implications of interfering in query composition. While it will still be possible to access the search terms manually (by typing them rather than selecting a query from the autocomplete dropdown), the situation would be different if the order sought to ban entire queries or classes of query.