An interesting case is winding its way through U.S. District Court in California. KinderStart is a search engine service aimed at young children. KinderStart has sued Google, alleging that Google has hurt KinderStart’s business by giving its website a low ranking in Google’s search results. KinderStart claims that Google is deliberately targeting it with a low ranking, because KinderStart is a Google competitor.
KinderStart has recently suffered a set back in its litigation. The district judge determined that KinderStart’s complaint failed to validly describe a claim against Google and dismissed it. However, the judge has left open the opportunity for KinderStart to amend its complaint, and KinderStart may do so. In particular, the district court appears to believe that, correctly stated, KinderStart could have an valid claim against Google for defamation.
Defamation is a spoken or written false statement of fact that negatively reflects on a person’s or business’ reputation. KinderStart believes that Google has falsely assigned it a low PageRank and that the low PageRank hurts KinderStart’s business reputation. To prove defamation, KinderStart will have to show that Google’s PageRanks are factual statements, and that Google has falsely stated KinderStart’s PageRank.
Interestingly, Google does not appear to have directly denied the crux of KinderStart’s claim. Google’s defense would appear to rely on a distinction between statements of fact and expressions of opinion. While a false statement of fact can be defamatory, an expression of opinion cannot. Opinions by their nature cannot be false. They are simply an expression of the speaker’s view on a subject. While a negative opinion can be harmful to its subject, the law deems them less dangerous than a false statement of fact — that is a lie. Only lies can support a claim for defamation.
While KinderStart maintains that its PageRank is a mathematically derived fact, which Google then lies about. Google asserts that, although they may be generated automatically, its PageRanks represent only Google’s opinion of a website. Google’s opinions about websites are coded into its algorithms, but this does not make the search results any more factual.
According to Google’s logic, its negative opinion about KinderStart, which it has expressed through its PageRank, cannot be found to be defamatory. Google’s position would be that it is not lying about KinderStart or KinderStart’s PageRank, it is simply expressing its negative view of the value of the KinderStart’s website. Even if KinderStart’s case does not go forward, Google’s defense is intriguing in its implications.
Google promotes its search engine heavily on the basis of its superior search algorithms. Indeed, its search results are generally so good that we have come to believe only a computer could produce such useful results. While others have tried to manually index the best of the web — Yahoo! started that way — users have come to see manual indexing as inferior and inevitably missing valuable sites. Only computers, and for now, only Google’s computers, appear to be able to accurately index the web.
But what does it mean if Google is playing with its results? Google’s own reputation is at stake here. It’s easy to see how a manual indexer’s own pre-conceived notions or prejudices could skew an index. It’s harder to see how a search engine’s algorithms could be programmed to do so, but KinderStart’s case may be a good example.
It may very well be that Google has not targeted KinderStart directly. It is not difficult to conceive that Google’s search engine is programmed to automatically identify other search sites. Would it be a surprise or even necessarily nefarious for Google to believe that other search websites are inferior to its own? I would suggest that if Google didn’t believe in its own superiority, it would need to drastically rethink its own business model and take steps to fix its search engine. So it should not be a true surprise if Google’s search engine algorithms automatically give KinderStart and other search engines low rankings.
Nonetheless, defamatory or not, it doesn’t feel right for Google to be penalizing its competitor’s websites, even if Google can genuinely make the case that it believes those sites to be inferior to its own. If KinderStart pursues its case, it will be interesting to see if Google can succeed in defending the low rankings it assigns to its competitors without injuring its own reputation for delivering search results upon which users can rely.