Google’s advertising business is a negligence lawsuit waiting to be actioned

Apparently the New Zealand government says Big Tech will pay a ‘fair price’ for local news content under new legislation.

Forget the newcomers like Stuff and The New Zealand Herald. The Fairfax Press, as the former was, was still running ‘The internet is scary’ stories at the turn of the century. What will Big Tech pay my firm? Any back pay? We have been in this game a long, long time. A lot longer than the newbies.

And what is the definition of ‘sharing’?

Because Google could be in for a lot.

Think about it this way: Google’s ad unit has enabled a lot of fake sites, scraped sites, spun sites, malware hosts, and the like, since anyone can sign up to be a publisher and start hosting their ads.

While Google will argue that they have nothing to do with the illegitimate usage of their services, some might look at it very differently.

Take the tort of negligence. To me this is classic Donahue v. Stevenson [1932] AC 562 territory and as we’re at 90 years since Lord Atkins’ judgement, it offers us some useful pointers.

Lord Atkin stated, ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

If you open up advertising to all actors (Google News also opens itself up to splogs), then is it foreseeable that unethical parties and bad faith actors will sign up? Yes. Is it foreseeable that they will host content illegally? Yes. Will this cause harm to the original copyright owner? Yes.

We also know a lot of these pirate sites are finding their content through Google News. Some have even told me so, since I tend to start with a softly, softly approach and send a polite request to a pirate.

I’d say a case in negligence is already shaping up.

If Google didn’t open up its advertising to all and sundry, then there would have been far fewer negative consequences—let’s not even get into surveillance, which is also a direct consequence of their policy and conduct.

Do companies that are online owe a duty of care to internet users? I’d say this is reasonable. I imagine some smaller firms might find it more difficult to get rid of a hacker, but overall, this seems reasonable.

Was this duty of care breached? Was there causation? By not vetting people signing up to the advertising programme, then yes. Pre-Google, ad networks were very careful, and I had the impression websites were approved on a case-by-case, manually reviewed basis. The mess the web is in, with people gaming search engines, with fake news sites (which really started as a way of making money), with advertising making pennies instead of dollars and scam artists all over the show, can all be traced to Google helping them monetize this conduct. There’s your obiter dicta right there. (Thanks to Amanda for remembering that term after all these years.)

Google hasn’t taken reasonable care, by design. And it’s done this for decades. And damages must be in the milliards to all legitimate publishers out there who have lost traffic to these unethical websites, who have seen advertising revenue plummet because of how Google has depressed the prices and how it feeds advertising to cheap websites that have cost their owners virtually nothing to run.

Make of this what you will. Now that governments are waking up after almost two decades, maybe Big Tech is only agreeing because it fears the rest of us will figure out that they owe way, way more than the pittance they’ll pay out under these legislative schemes?

Anyone with enough legal nous to give this a bash on behalf of the millions of legitimate publishers, past and present, directly harmed by Google and other Big Tech companies’ actions?

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