Australian Civil Liberties Union

Your Rights 2004

Chapter 21


 Google. Toben. Gutnick 


Google censoring web content

Should Google decide what counts as an unacceptable website? Bill Thompson doesn’t think so.

Since its creation in 1998 Google - at, as you probably know already - has become the world’s best search engine and the starting point of choice for almost all my web queries.

It has even generated its own verb - to do some googling around means sitting there playing with queries and exploring the obscure parts of the Web that are revealed by looking for odd or even improperly spelled phrases.

Nobody expects Google, or any index, to be perfect,. since the Web is growing and changing so fast and many parts of it are generated from databases and therefore essentially impossible for a search engine to find or classify.

However, researchers at the highly-respected Berkman Center for Internet and Society at Harvard University have found that the company is actively removing sites from its database, and that this censorship is going unnoticed.

Regional differences

Jonathan Zittrain and Benjamin Edelman have built up a reputation for their careful analysis of the ways in which web content is filtered, censored and controlled.

They have looked in detail at the practices of national governments, specifically China and Saudi Arabia, and provided lots of useful information for those of us who want to promote freedom of speech both online and offline.

Their latest paper deals with the differences between the. results returned when searching, the US/world version of the site, the French site at and the German site at

They have discovered over one hundred sites which can be found by searchers in the US but not by those in Germany or France.

They are mostly sites that feature racist material or that deny the existence of the Holocaust, such as, a white pride site filled with white nationalist essays by former Ku Klux Klan leader David Duke.

Legal battles

Responding to the discovery, Google spokesman Nate Tyler said on tech news programme ZDNN that the sites were removed to avoid the possibility of legal action being taken against the company, and that each site was removed only after a specific complaint from the government of the country concerned.

On first sight this seems perfectly reasonable - after all, Google isn’t a public service but a private company trying to make money out of its technology and database, and it has no obligation to index everything.

It certainly has a duty to its owners (it’s a privately held company) to stay out of legal battles with governments, since they can be pretty expensive.

Unfortunately things are not that simple, and the censorship of the French and German versions of the Google database is a clear demonstration of just what is wrong with internet regulation today.

What is happening is that a government is saying to Google: ‘we don’t like that website - so drop it from your database’ and the company is acquiescing.

The people running the website aren’t told. The people looking for the website aren’t told - they aren’t even told that this policy exists.

The rest of us aren’t being told either - Google’s Nate Tyler said clearly that ‘as a matter of company policy we do not provide specific details about why or when we removed any one particular site from our index.’

Click here to tell us what you would like Bill to write about

No due process

The result is that one of the web’s most important tools is being deliberately broken at the request of governments, with no publicity, no legal review and no court orders.

The sites involved may or may not be illegal in France or Germany - we don’t know because the case never comes to court, and is never tested. All we know is that they aren’t wanted.

The problem is not that content is being censored -that is inevitable and in many cases desirable.

I agree with our current laws against child pornography and have no difficulty at all endorsing the view that these sites should not be allowed online.

I’ll support the team at Google if they want to spend their time removing them. In fact, a search for ‘lolita pictures’ finds 291,000 entries in the US index, so this is obviously less of a priority for them.

The problem is that Google itself is deciding what should be censored and that its motives are entirely commercial, making it possible for government agencies to influence it without having to go through due process or defend their requests in public.

I believe we need to move towards an internet that is properly regulated, where decisions like this can only be made through the courts.

I would rather have a net where Google and other search engine providers had a legal obligation to provide full and comprehensive results to the best of their technical ability and to inform searchers of any areas where content had been removed from their index on legal grounds, even if that also gives governments the ability to block certain sites from the index.

Telling nobody

I know that would give the government of the People’s Republic of China the power to censor what their citizens can see online - but they have that power already and use it, building firewalls and filters around their part of the net.

At least if the whole internet was properly regulated and brought into the legal framework that governs all

other areas of our life we would be able to have a sensible discussion about the limits of regulation and control.

As it is, we have private companies like Google deciding what we can and can’t see based on their self-interested readings of poorly-drafted national laws, taking advice from unnamed and unaccountable Government agencies and telling nobody what is going on.

Anything has to be better than that, surely?

And what happens when someone in the French Ministry of Culture reads this article and decides that, by giving publicity to Stormfront, I am acting against the French public interest?

Will they dispatch a quick e-mail to Google and ask them to remove this page - or this whole site - from their index?


Google bans controversial sites

By Declan McCullagh
Special to ZDNet News
October 24, 2002, 4:35 AM PT

Google, the world’s most popular search engine, has quietly deleted more than 100 controversial sites from some search result listings.

Absent from Google’s French and German listings are Web sites that are anti-Semitic, pro-Nazi or related to white supremacy, according to a new report from Harvard University’s Berkman Center. Also banned is, a fundamentalist Christian site that is adamantly opposed to abortion.

Google confirmed on Wednesday that the sites had been removed from listings available at and The removed sites continue to appear in listings on the main site.

The Harvard report, prepared by law student Ben Edelman and assistant professor Jonathan Zittrain, and scheduled to be released Thursday, is the result of automated testing of Google’s massive 2.5 billion-page index and a comparison of the results returned by different foreign-language versions. The duo found 113 excluded sites, most with racial overtones.

“To avoid legal liability, we remove sites from search results pages that may conflict with German law,” said Google spokesman Nate Tyler. He indicated that each site that was delisted came after a specific complaint from a foreign government.

German law considers the publication of Holocaust denials and similar material as an incitement of racial and ethnic hatred, and therefore illegal. In the past, Germany has ordered Internet providers to block access to U.S. Web sites that post revisionist literature.

France has similar laws that allowed a students’ antiracism group to successfully sue Yahoo in a Paris court for allowing Third Reich memorabilia and Adolf Hitler’s “Mein Kampf” to be sold on the company’s auction sites. In November 2001, a U.S. judge ruled that the First Amendment’s guarantee of free speech protects Yahoo from liability.

Google’s battles

The Harvard report comes as Google is becoming increasingly embroiled in international political disputes over copyright and censorship. China blocked access to Google last month.

 Google was criticized in March for bowing to a demand from the Church of Scientology to delete critical sites from its index. In a response that won praise, Google replied by pledging to report future legal threats to the site run by law school clinics.

As Google has become the way more and more people find information on the Internet, it has also become an increasingly visible target for copyright complaints about cached information and allegedly infringing links.’s Google section lists 16 requests or legal threats the company has received in the past three months. One Google competitor and critic even suggested that the wildly popular search engine be transformed into a government-controlled “public utility.”

Edelman, who created the program that tested URLs against Google’s index, said he was investigating a tip about Google’s German-language version.

“One concern that I’ve had for some time vis-a-vis filtering is that filtering is almost always secretive,” Edelman said. “In the (library filtering) case, that meant you can’t look at the list of blocked sites. In the Chinese government case, you can’t see what sites are being blocked.”

Edelman, who is a first-year law student, testified as an expert witness for the American Civil Liberties Union (ACLU) in a court challenge to a law requiring libraries to install filtering software if they accept federal funds. He is also a plaintiff in a second lawsuit filed in June to eviscerate key portions of the Digital Millennium Copyright Act.

Google’s response

Google refused to reply to a list of questions that CNET sent via e-mail, including which sites have been delisted, how many sites have been delisted, what standards are used, and what other Google-operated sites have less-than-complete listings.

In an e-mail response, Google’s Tyler said: “As a matter of company policy we do not provide specific details about why or when we removed any one particular site from our index. We occasionally receive notices from partners, users, government agencies and the like about sites in our index. We carefully consider any credible complaint on a case-by-case basis and take necessary action when needed. This is not pre-emptive--we only react to requests that come to us.. .to avoid legal liability, we remove sites from Google search results pages that may conflict with local laws.”

Tyler said an internal team involving lawyers, management and engineers makes the final decision on what to remove. “At Google we take these types of decisions very seriously,” he said. “The objective is to limit legal exposure while continuing to deliver high quality search results that enable our users to find the information they need quickly and easily.”

Tyler pointed to Google’s terms of service agreement, which says Google will “consider on a case-by-case basis requests” to remove links from its index.

A moving target

Because Google has to keep track of a constantly moving target--new sites arguably illegal under French or German law appear every day--the search engine is encountering the same problems of overinclusiveness that traditional filtering software has experienced.

According to the Harvard report, some sites that Google does not list include, a “Chinese legal consultation network,” and, a discount Web-hosting service and some conservative, anti-abortion religious sites. Those sites do not appear to violate either German or French laws.

Banned from and listings is, one of the Internet’s most popular “white pride” sites. Stormfront features discussion areas, a library of white nationalist articles and essays by David Duke, a former Ku Klux Klan leader.

“We’ve been dealing with this for quite a few years,” said Don Black, who runs the site. “The German police agencies seem obsessed with Stormfront even though we’re not focused on any German language material.”

Black, who learned a few months ago that delisted Stormfront, says he doesn’t hold it against the Mountain View, Calif.-based company. “Google is trying to conform to their outrageous laws,” Black said. “So there’s really nothing we can do about it. It’s really a French and German issue rather than a Google issue.”

The First Amendment

Because Google is a company and not a government agency, it has the right in general to delete listings from its service or alter the way they appear. (On Tuesday, however, CNET reported that an Oklahoma advertising company has sued Google over its position in search results.)

“Google may not only have the legal right to (delete listings), they may have the legal obligation to do it,” said Barry Steinhardt, director of the ACLU’s technology and liberty program, and a co-founder of the Global Internet Liberty Campaign.

“Over the long term, this will become a significant issue on the Net,” Steinhardt said. “There’s a wide variety of laws around the world prohibiting different forms of speech. You can imagine what the Chinese government prohibits versus what the French government prohibits versus what the U.S. government prohibits.”

Edelman, of Harvard’s Berkman Center, suggests that Google find a way to alert users that information is missing from their search results.

“If Google is prohibited from linking to Stormfront, they could include a listing but no link,” Edelman said. “And if they can’t even include a listing for Stormfront, they could at least report the fact that they’ve hidden results from the user. The core idea here is that there’s no need to be secretive.”



Heated debate on free speech

Are laws restricting racist rhetoric on the internet protecting minorities or curbing free speech?

Caitlin Fitzsimmons report
IT Today, The Australian, 26 November 2002

Racists have always existed but their opponents fear the internet has fostered an explosion in their numbers and power.

The internet allows people to communicate freely to a world-wide audience enhancing democracy but also providing an ideal medium for racist organisations to disseminate their views and recruit new members.

A United Nations report estimates there could soon be 2000 racist websites promoting everything from Holocaust denial to hatred of Palestinians and other Arabs.

Many of these websites have special pages directed at children to take their message to a new generation.

The problem includes not just websites with racist propaganda and imagery, but chat rooms and discussion groups that reinforce racist ideology and foster a sense of belonging for new recruits.

The Human Rights and Equal Opportunity Commission (HREOC) says the internet is also a distribution ground for racist computer games, including one where the player dresses either in Ku Klux Klan robes or skinhead attire and blasts away at “sub-humans” — Negros and Latinos — and their Jewish “masters”.

Cyber-racism is a global problem and in the United States much of the offending material is protected by the First Amendment, which guarantees freedom of speech.

Many argue it is futile for Australia or any other country to pass laws against race hate on the internet, since it takes less than 24 hours to set up a mirror site in the US or a less restrictive country. It is problematic but not impossible to prosecute someone for material published in another jurisdiction.

In December 2000, the highest German court on civil affairs allowed the prosecution of Adelaide man Dr Fredrick Toben for publishing Holocaust denials on his website in Australia.

The court decided it had jurisdiction because the material could be downloaded by German citizens and Toben, who went to Germany and allegedly drew attention to his website, spent several months in a German prison for the crime.

The stoush between Yahoo! and the French courts over whether the US-based internet company had the right to sell Nazi memorabilia to French citizens involved a similar principle.

There us no question of jail terms for race hate offenders in Australia. Law enforcement here has mainly been local.

Australians have an implied right to free speech in the Constitution but this is tempered by competing rights and laws such as defamation.

The Keating government passed the Racial Hatred Act in 1995, which amended the Racial Discrimination Act to make it illegal to “offend, insult, humiliate or intimidate” a person or a group of people on the basis of race.

The law does not apply to acts done in private, including private emails or some websites with password protection, but it defines most of the internet as a public space.

The law allows people to express extreme views as long as they act reasonably and are expressing a genuinely held belief.

In the first case successfully applying Australia’s racial vilification laws to the internet, a September decision by the Federal Court upheld a complaint by Jeremy Jones, president of the Executive Council of Australian Jewry.

Jones sued Toben, the same man who found himself on the wrong side of the law in Germany, for racial vilification.

The offending material, published on the Adelaide Institute website, claimed the Auschwitz concentration camp had no gas chambers and stated that the number of Jews killed during World War II was exaggerated.

In 1996, Jones complained to HREOC. Four years later he obtained a ruling that the material was in breach of racial vilification laws.

Jones took the case to the Federal Court, as Toben had not removed the material by 2001.

Toben, who represented himself, did not offer a valid legal defence and the Federal Court granted summary judgment in favour of Jones.

Töben has now filed an appeal that challenges the Federal Court decision on bold">every ground possible.

The case will return to court next year.

The Toben versus Jones case demonstrates that laws restricting race hate can be applied to the internet, but human rights groups say the process is too slow and cumbersome. “We were dealing with material published by an Australian, hosted by an Australian service provider and the people complaining about the material live in Australia, yet I had to put time and effort into it and a solicitor and barrister had to be involved,” Jones says.

“An ordinary member of the public would not be able to find people to commit themselves and take it the we were able to take it,” he says. Jones says he supports HREOC or an equivalent body being able to make a ruling and enforce its decision.

Yet free speech advocates such as Electronic Frontiers Australia, a group committed to civil liberties on the internet, argue the existing laws are counterproductive and the changes suggested by Jones would further chill freedom of speech.

EFA board member Danny Yee says the existing ABA system is a “disaster” and there is little accountability to the public.

The internet should not be regulated as if it were a traditional media outlet such as television or radio because websites were not pushed on people like pamphlets in letterboxes but relied on people seeking them out.

“On the internet anyone can publish something and it’s no different to them mouthing off in the local pub,” Yee says. “It should be left in obscurity.”

Yee says HREOC’s preliminary ruling in the Toben case is “terrible”.

Toben used the Adelaide Institute website for discussing a wide range of issues, he says, yet HREOC demanded the closure of the entire site. The Federal Court narrowed the ruling down to a few documents. In some ways, the Töben case is not a particularly useful precedent because Toben did not argue any of the specific defences allowed in the Act.

The law provides several exemptions protecting free speech, including a broad defence of fair comment, if it is a statement of genuine belief.

Artistic work and discussions with a genuine academic, artistic or scientific purpose are also protected.

The structure of the legislation is similar to defamation law. The plaintiff has to prove vilification and the defendant has to prove a defence.

“It can therefore be used to harass people in favour of those who have the resources to mount complaints put through the court system,” Yee says.

The Australian laws “go overboard”, Yee says and the US provides better protection of free speech because it permits the dissemination of extreme views but draws a line at direct incitement to violence.




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