Wednesday 28 May 2014

"The Good Wife" TV Series - Are search engines entitled for protection under First amendment (US Constitution)?

     This week I was watching this American  legal and political drama TV series - "The Good Wife". The Season 4  had an interesting case, where a search engine company is accused of maliciously lowering rank of  a website which was once on top. 

     The case brought up some very interesting facts and points, which are equally important in real life. During this blog post I'm going to elaborate my subject about First Amendment - US Constitution (Right to Free Speech) and Article 19 (1) (a)  Indian Constitution with help of 2 stories - First - A fictional one (from "The Good Wife" Season 4 Episode 3) and Second - Real Case Law. 


Firstly I'll explain in short - The working of search engines. Search engines are controlled by mathematical algorithm which produces a PageRank which represents significance of website. Higher the PageRank more closely the website in question matches the search results. 

The Good Wife Season 4 Episode 3 - "Two Girls One Code".

     Basically there are two girls, who have a voice recognition software website which had a high search engine ranking which was allegedly lowered by Search engine -"ChumHum" due to some professional tiff. The case goes to trial, many facts are presented and search engine is asked to  summon algorithm. 

     Now the Defendant (Search Engine) argues that its algorithm is protected by free speech, i.e., First Amendment Rights like an editorial website. All it does is to index the webpages and put it on for searcher. Then plaintiff's counsel uses it against them by calling to the stand the blogger who defamed many tech companies including the plaintiff's. Now blogger has his defense like everything he wrote was his opinion, which then leads to plaintiff's counsel saying -"If the search engine company insists on free speech, it is responsible for that speech". Which brings a wave of defamation suit in the court room which could cost the Search Engine company into millions.

     The case ends with a twisty settlement but point here to know is that. 

  • Algorithm and Search results are protected by First Amendment of US Constitution expressly and can be protected under Art. 19 (1) (a) Of Indian Constitution impliedly. (At least in a TV show)

A real case - Search King Inc v. Google Technology Inc. 

     Here a company Search King sued Google Inc for maliciously lowering its PageRank. The plaintiff argued that the PageRank system is "Objective" in nature which obviously capable of being proven true or false. Larry Page - Founder of Google Inc. in Doctoral Thesis at Stanford University mentions PageRank system as "Objective". 
     The question here was -"Can a search engine be given rights of first amendment?"
     The court finds that - 
  • The process of PageRank algorithm is objective, but results are subjective (like an opinion)
  • The PageRanks are opinions and other search engines may have different opinions which don't need to be true or false. 
  • There is no conceivable way to prove that PageRank assigned to a website is false. 
So, Google's PageRanks are entitled for full constitutional protection in First Amendment

Position in India

    In US constitution editorial discretion and rights are expressly mentioned. But here in Indian constitution we don't have express provisions about rights of free press. But it's an implied right under Art. 19 (1) (a). Sadly, in India we haven't seen such cases. 

Last Word 

     Now these two cases show that search engines are protected by First Amendment. In India, due to increasing penetration of Tech Giants and even Indian Tech start ups, we in recent future hope to see such kind of cases. As we don't have express provisions for right to free press, it will be interesting to see how court would interpret the Art. 19 (1) (a).

Important Links:

Here I'm giving important links of case laws and sources of information for the blog post :
Two Girls, One Code recap/review - Wall Street Journal : Click Here
Search King Inc v. Google Technology Inc. : Click Here
First Amendment  : Click Here   WikiPedia - Click Here
More Info About "The Good Wife" : Click Here

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