Friday, April 26, 2013
James Grimmelmann, New York Law School, is publishing Speech Engines, in the Minnesota Law Review (Forthcoming). Here is the abstract.
Academic and regulatory debates about Google are dominated by two opposing theories of
what search engines are and how law should treat them. Some describe search
engines as passive, neutral conduits for websites’ speech; others describe them
as active, opinionated editors: speakers in their own right. The conduit and
editor theories give dramatically different policy prescriptions in areas
ranging from antitrust to copyright. But they both systematically discount
search users’ agency, regarding users merely as passive audiences.
A better theory is that search engines are not primarily conduits or editors,
but advisors. They help users achieve their diverse and individualized
information goals by sorting through the unimaginable scale and chaos of the
Internet. Search users are active listeners, affirmatively seeking out the
speech they wish to receive. Search engine law can help them by ensuring two
things: access to high-quality search engines, and loyalty from those search
The advisor theory yields fresh insights into long-running disputes about
Google. It suggests, for example, a new approach to deciding when Google should
be liable for giving a website the “wrong” ranking. Users’ goals are too
subjective for there to be an absolute standard of correct and incorrect
rankings; different search engines necessarily assess relevance differently.
But users are also entitled to complain when a search engine deliberately
misleads them about its own relevance assessments. The result is a sensible,
workable compromise between the conduit and editor theories.
Download the full text of the article from SSRN at the link.