Metropolitan International Schools Ltd v Designtechnica Corporation and Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady,THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 01 October 2010 |
| Neutral Citation | [2009] EWHC 1765 (QB),[2010] EWHC 2411 (QB) |
| Docket Number | Case No: HQ09X01852 |
| Court | Queen's Bench Division |
| Date | 01 October 2010 |
[2009] EWHC 1765 (QB)
The Honourable Mr Justice Eady
Case No: HQ09X01852
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Desmond Browne QC and David Hirst (instructed by Eversheds LLP) for the Claimant
Antony White QC and Catrin Evans (instructed by Reynolds Porter Chamberlain LLP) for the Third Defendant
Hearing dates: 24–25 June 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady:
The parties
1. The Claimant in these proceedings is Metropolitan International Schools Ltd, which now trades as “SkillsTrain” and/or “Train2Game”. Over the period from 1992 to 2004 the Claimant apparently traded under the name Scheidegger MIS. It is described as one of the largest European providers of adult distance learning courses and claims to have over 50 years experience in teaching vocational skills. It is only recently, with effect from 16 March 2009, that it has carried on business under the style “Train2Game” providing distance learning courses in the development of computer games and their design. The name “SkillsTrain” has been used since February 2004 in connection with the Claimant's distance learning courses in Information Technology and book-keeping. The way the system works is that students who enrol on its courses work independently on materials provided by the Claimant and periodically submit assignments for assessment via the Internet. Its tutors may be contacted either by telephone or email.
2. It has brought proceedings against various parties in respect of allegations published on the Internet.
3. The First Defendant is Designtechnica Corporation, which trades as “Digital Trends”. It is incorporated under the laws of Oregon in the United States and maintains a website with the URL www.digitaltrends.com. This is said to provide “news, professional reviews, and opportunities for public discussion of the latest consumer electronics products, services and trends”. The evidence suggests that the website receives some two million unique visitors per month and that requests are made for more than ten million page views per month.
4. The First Defendant's website contains some 14 separate bulletin boards or forums with the URL http://forums.digitaltrends.com/. It is alleged that these forums have 14,000 members and that they comprise 13,000 separate threads or discussions, in which almost 75,000 individual postings have been made up to the commencement of these proceedings.
5. Internet users who wish to post a comment within a specified thread, or to commence a new thread, are required to register a username with the website. This will then be published alongside any posted contribution together with the date and time on which it was made. Anyone may access the forums and read their contents. So too, the contents are accessible to Internet search engines.
6. The Second Defendant, Google UK Ltd, is a subsidiary of the well known US corporation, Google Inc (being incorporated under the laws of Delaware and based in California). Google Inc has been joined as the Third Defendant. Its services can be accessed via the Internet from most countries in the world. It has approximately 20,000 employees and, I understand, made profits in the first quarter of 2009 of £952m. Those services include Internet search, cartography, news aggregation and the hosting of blogs and emails. Its revenue is derived from advertising.
7. The scale of the operation emerges from the evidence of Mr Jaron Lewis, who is the solicitor for the Second and Third Defendants. There were in January 2005 approximately 11.5 billion publicly indexable web pages; that is to say, pages which a search engine such as that made available by Google would be able to access. Since then, the number of such pages has increased to approximately 39 billion. This figure is derived from worldwidewebsize.com. As at 31 March of this year, there were approximately 1.59 billion users accessing the Internet. This is based on the most recently available statistics published by InternetWorldStats.com.
8. The Second Defendant does not operate the Google search engines, as was explained to the Claimant's solicitor before the commencement of these proceedings. According to its defence, served on 9 June 2009, it carries on a sales and marketing business but does not provide online services (as the Claimant alleges). It employs some 600 people, including technical staff, who provide information technology support services to the frontline marketing staff or are software engineers or product managers. It is averred that it does not operate or control any Google branded search engine: moreover, its employees do not have access to any of the technology used to operate and control google.com and google.co.uk, which are owned and operated by the Third Defendant. Despite this, it is alleged in the particulars of claim that the Second Defendant is responsible for the publication of information gathered in response to Google searches. Accordingly it is pleaded on behalf of the Second Defendant that “… the Claimant has sued the wrong person and should discontinue its claim or have judgment entered against it”.
The role of search engines
9. Because it is so central to the issues now before the court, it is necessary for me to summarise the evidence explaining how search engines work. This again derives primarily from Mr Jaron Lewis, although it is a subject also covered in expert evidence introduced by the Claimant from Dr David Sharp.
10. The Internet comprises web pages containing information and each page has a unique address (the “URL”). The page will appear when the URL is typed into an Internet browser. Each website address ends with a “top level domain”, which is a series of letters often denoting the country in which the website is registered. Thus, many websites which are accessed in the United Kingdom will end with the “.uk” domain. Google operates search engines for all the major “country code top level domains” (“ccTLDs”). The principal reason why this is done is to enable Google searches to provide appropriate results for local users. It was explained, by way of example, that a search on the word “bank” would yield different results on www.google.co.uk from those appearing on www.google.ca (where primarily Canadian banks would appear).
11. 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”.
12. When a search is carried out, it will yield a list of pages which are determined (automatically) as being relevant to the query. The technology ranks the pages in order of “perceived” relevance – again without human intervention. The search results that are displayed in response to any given query must depend on the successful delivery of crawling, indexing and ranking. Content on the Internet is constantly being crawled and re-crawled and the index updated.
13. Obviously Google has 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.
14. The complaint in these proceedings against the First Defendant relates to information appearing on one of its web bulletin boards posted by third parties. Needless to say, the Second and Third Defendants have no control over the First Defendant or over what appears on its bulletin boards.
The nature of the claims
15. The Claimant complains of two distinct matters so far as the First Defendant is concerned. At paragraphs 13–16 of the particulars of claim, it pleads a forum thread commenced on 25 March 2009 by a user with the username richardW under the title “Train2Game new SCAM for Scheidegger” (“the Train2Game thread”). It was said to be comprised of 146 separate postings, published between 25 March and the date of the pleading (1 May 2009), running to 15 separate web pages. A copy of the thread was served as Annex 2. It is unnecessary to rehearse it for the purposes of this judgment, but at paragraph 16 of the particulars of claim six natural and ordinary meanings are spelt out, namely that there are reasonable grounds to suspect:
i) that the Claimant's sales representatives for Train2Game sign up students in a cavalier manner irrespective of their suitability for the course such that the Claimant may be liable for a legal claim for misrepresentation;
ii) that the Claimant's sales representatives employed a bogus and fraudulent credit checking and loan financing assessment that does not comply with UK consumer credit law;
iii) that the Claimant knowingly takes money from students' bank accounts without authorisation;
iv) that the Claimant's sales claims for Train2Game courses are unfeasibly overblown, and that the course, in fact, offers appalling value for money and is of such low quality that the Claimant should be investigated by UK Trading Standards;
v) that the Claimant has knowingly infringed the copyright of third parties in the preparation of Train2Game course materials;
vi) that the Claimant's Train2Game course is nothing...
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