Chapter 15

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In a complicated employment law case the Court of Appeal has confirmed that Dacas v Brook St Bureau is correct in its analysis of a triangular employment situation. In Cable and Wireless v Muscat [2006] EWCA Civ 220 (see http://www.bailii.org/uk/cases/UKHL/2006/34.html) the court said 'In our opinion, the view of the majority in Dacas was correct. The essentials of a contract of employment are the obligation to provide work for remuneration and the obligation to perform it, coupled with control. It does not, in our view, matter whether the arrangements for payment are made directly or indirectly'. Much depends on the evidence to determine whether a contract of employment should be implied between the 'worker' and the 'end user'. The court said 'No doubt, if [Employment Tribunals] apply their minds to the possibility of an implied contract between the worker and end-user, there will be some cases in which they find that relationship, as in this present case. There will no doubt also be many cases in the future in which [Employment Tribunals] will conclude that a worker in the triangular relationship is not an employee of the end-user. That may be because they find that he or she is an independent contractor. It may be that the ET will conclude, on the particular facts of the case, that the worker was employed by the agency. Another possibility is that the worker may be found to have had a series of short employment contracts with different end-users but no continuing contract of employment such as will support employment rights. All will depend on the facts of the individual case'.

Page 277/278, para 15.5.3
Metropolitan International Schools Ltd v Designtechnica Corporation, Google UK and Google Inc [2009] EWHC 1765 (QB)

In the first judicial analysis of search engine liability for defamation under UK law the key question was whether Google should be regarded as a ‘publisher’ of the words complained of (whether before or after Google had been notified of their defamatory comments) or whether it was a mere facilitator. The legal action against Google's US and UK operations had been brought by Metropolitan International Schools in respect of comments on a website that appeared in Google's search results.

Mr Justice Eady found that Google was not liable for publication of the statements because it had no control over the search terms entered by users of the search engine or of the material which is placed on the web by its users. He confirmed that mere facilitators, like telephone carriers, are generally not liable for defamatory content. He further noted that in the Godfrey case (discussed above in the context of ISP providers) in which Demon Internet was found liable for defamatory postings that it had failed to remove from a site it hosted, in spite of warnings, “the acquisition of knowledge was regarded as critical.” In distinguishing the facts of Godfrey he said:

“......the defendant stored information posted by other people, transmitted it to subscribers, and had knowledge that the words complained of were defamatory. It also had the ability to take them down from the Web.”

Mr Justice Eady also pointed out that a search engine is different to a website host; merely pressing a button will not ensure that the offending words will never reappear on a Google search snippet and there is no control over the search terms typed in by future users. In considering the role of search engines he said:”

“It would be impossible for Google to search every page available on the web in real time and then deliver a result in a time frame acceptable to users. What happens is that Google compiles an index of pages from the web and it is this index which is examined during the search process. Although it is well known, it is necessary to emphasise that the index is compiled and updated purely automatically (i.e. with no human input). The process is generally referred to as “crawling” or the “web crawl”

He further said that if someone feels they have been defamed by material on a website then they should address their complaint to the person who actually wrote and published the material. The operator of a search engine simply compiles an index of pages from the web and it is this index which is examined during the search process.

Oxford University Press, Online Resource Centre, Chapter 15.

Chapter 15