A recent story, reported for example by the Globe and Mail, nicely illustrates Google’s dual, and perhaps ambiguous, role as “speaker and censor,” at once exercising, or claiming to exercise, an editorial judgment and making itself he agent of speech-restricting governments, about which I blogged some time ago. According to the Globe, “Google’s search algorithm will begin demoting websites that are frequently reported for copyright violations, a move that will likely make it more difficult to find file-sharing, Torrent and so-called file locker sites.” These websites will not be removed from search results, but they will be harder to find.
This is, it seems to me, an obvious example of “editorial judgment,” which – as I explain in more detail in the post linked to above – Google claims to exercise when designing its search algorithms. At the same time, it is an an example of Google acting, in effect, as a regulator, if not, in this case, as a censor. The decision to demote allegedly-copyright-infringing websites is not, one suspects, motivated by commercial considerations; at least not immediately commercial considerations, since, as the Globe puts it, the move “should please Hollywood” – and other content producers – and perhaps Google considers pleasing them as an investment that will pay off. Google’s state reason for this decision is that it will “help users find legitimate, quality sources of content more easily” (my emphasis). One usually associates concerns for legitimacy with public authorities rather than private corporations.
Indeed, some might want Google to take an even more public-spirited position. As Deven Desai, of the Thomas Jefferson School of Law, notes in a post on Concurring Opinions, “this shift may open the door to more arguments for Google to be a gatekeeper and policer of content.” Indeed, although he does not favour such an approach, he points out that it is a “difficult question … why or why not act on some issues but not others.” Why, for example, copyright infringement but not hate speech? For now, even Google might lack the data and/or content-analyzing capacities effectively to recognize hate speech. But given how fast technology evolves, this might change sooner rather than later. As prof. Desai observes, if Google becomes a more overt internet regulator, it will be criticized, for example from a competition-law standpoint. But of course it will also be criticized if it refuses to take on that role.
Either way, there will be a lot of interesting questions for lawyers. At what point does Google, acting as a quasi-regulator, become a state agent subject to constitutional constraints? How does competition law, and its prohibition on abuse of a dominant position, interact with the constitutional protection of freedom of speech, if the latter encompasses Google’s freedom of editorial judgment about its algorithm? What sort of due process rights do or should people affected by Google’s editorial decisions have – and what legal framework – for example, administrative or maybe tort law – is appropriate for settling this question? This is a lot to think about. No answers from me for now.