The U.S. courts upheld first amendment rights of Baidu, a Chinese search engine that’s also the world’s third-largest with an estimated 70 per cent share of the Chinese-language market.

Baidu won the court battle against New-york based “promoters of democracy in China” who were on the losing side of a district court’s free speech decision (Zhang et al. v. Baidu.com, Inc). The activists were suing popular Chinese language search engine Baidu for conspiring to prevent “pro-democracy political speech” from appearing in its search-engine results in the U.S., alleging that Baidu omitted their work from their U.S. search engine results at the behest of the Chinese government.

In what from the outside seems like a bit of a role reversal, the Chinese search giant claimed its censorship was protected ‘free speech,’ and that it had the right to exercise editorial discretion as to which links it published. The judge in this case had two decisions to make: 1. Are search engine results “published” by Baidu as a “media publisher?” and  2. Are Baidu’s editorial choices protected by the First Amendment under the U.S. Constitution?

On both points the judge sided with Baidu. The judge’s decision followed the same conclusion from a decade old decision Search King v. Google. The Judge decided that a search engine’s editorial function is much like the editorial function of other media publishers, like for example a newspaper. In concluding his analysis in favour of Baidu, the judge stated: Baidu does not have the ability to block “pro-democracy” writings from appearing on the Internet in this country altogether; it can only control whether it will help users find them. And if a user is dissatisfied with Baidu’s search results, he or she “has access, with just a click of the mouse, to Google, …”

The court described its decision as “a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism… is a sign and source of our strength.”

The description of a search engine as a ‘media publisher’ and editor does illustrate a growing conflict in how the courts treat search engines. The argument presented by Baidu is that the results generated by its search algorithm constitute protected speech. The algorithm was made by Baidu, and is an expression of the views, values, and opinions. They claim that the decisions made by their algorithm as to what is relevant to a user, as well as what is appropriate to show, is the same sort of protected speech that the publisher of a newspaper or magazine should enjoy.

Search engines: automated tools or curated lists?

Paradoxically, this description as an editor or media publisher is the opposite of what companies like Google and Bing rely on when it comes to issues like copyright infringement or online defamation. When your top Google result is a page that makes libellous claims against you, or when Bing links to websites dedicated to helping people infringe copyright, the engines throw up their hands and say ‘We are just a neutral third party, our algorithm isn’t an endorsement of the quality of anything we link to.”

Search engines are now the focus of these competing ideas in law. In some cases, search engines are editors expressing an opinion like a newspaper publisher, and in other cases they are machine algorithms that just spit out a results like they were mathematical formula.

The human hand in search engine results are evident in a number of ways.  Whether it’s the values and intentions of an algorithm’s creator, or the careful grooming of a blacklist, the results generated by search engines represent an opinion at what an Internet searcher wants to see, far more than they do some abstract mathematical truth.

If the courts do finally settle on the idea that search engines are to be as free in their publishing as a newspaper editor, then the elephant in the room is Google. With a 67 per cent U.S. market share (and growing), the ability to use editorial discretion to shape public discourse around an idea is dangerous. It’s telling that some of the logic used in the court’s decision mentioned that Baidu’s decision didn’t significantly impact on an American’s ability to find an article, that it wasn’t in Baidu’s power to “remove it from the Internet.” If this had been Google censoring political speech, I do not think the fact that the site was available on Baidu would have been very comforting to anyone.

In the end, the judge was in a very difficult position. If he had decided otherwise, he would have been wading into an opinion on Chinese domestic policy. While on its face the case was about Americans searching for materials written by Americans, the realities were more complicated. If Baidu was forbidden from censoring American search results, then they would be forced into providing an uncensored version of their search engine to any Chinese citizen who used an American VPN to hop the Great Firewall of China.

 

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Jim Love, Chief Content Officer, IT World Canada
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Monica Goyal
Monica Goyal, Entrepreneur, Lawyer and Innovator is the founder of Aluvion, a legal solutions company offering technology, paralegal and lawyer-driven solutions with a special focus on the quality, cost, and accessibility of legal services for both businesses and individuals. Monica began her career working as an engineer in R&D for companies like Toshiba, Nortel and Nokia while earning her Masters of Engineering at Stanford. Monica's history conditioned her to solve problems in a efficient and tech-savvy manner, an approach she brings with her to legal solutions. Monica currently sits on the Canadian Bar Association's Futures Initiative, and will be teaching a course on Legal Technology at York University’s Osgoode Hall. She was recently named one of 10 Women to Watch in Tech in the Journal of the American Bar Association.