Google loses round one of court battle with Waiguru

Internet giant Google has lost round one in a court battle with Planning secretary Anne Waiguru that is expected to define the boundaries of liability for online carriers of material posted by third parties.

The Constitutional and Human Rights Division of the High Court, sitting in Nairobi, declined to grant Google Kenya’s prayers to be struck out of the case in which Ms Waiguru has sued Google Kenya and its mother company Google Incorporated.

Google Kenya had made the application in response to a suit the Cabinet Secretary had filed against it and Google Inc. as part of her fight with a Kenyan website Daily Post over publication of a story she claims was defamatory.

Google Kenya had argued in its application that it was not responsible for publication of the same material as the platform is owned by Google Inc. which only pays the local operation marketing fee through Google Ireland.

Google Kenya said it was only responsible for marketing and service support for Google Inc, hence it could not be held responsible for the defamatory material.

In a ruling made last Friday, Justice Isaac Lenaola declined to strike Google Kenya from the suit, arguing that it was too early to tell whether the firm was aware of the offensive material and if it could have been able to prevent its publication.

Information before court was not enough to determine with certainty that Google Kenya had no responsibility whatsoever in the allegations Ms Waiguru made in her petition, the judge argued, adding that Google would suffer no harm by participating in the proceedings.

“In any event, I do not see any prejudice Google Kenya may suffer by participating in the proceedings if its joinder will be useful in having the petition determined. In the event that the court does not find any wrongdoing on its part, then appropriate orders will be made at that stage,” he said.

Ms Waiguru had sought court orders compelling Google Kenya to reveal the identities of the owners of the Daily Post in order to facilitate the legal action she wanted to take against the publishers.

“The said story is defamatory of my character and having been aggrieved by the offending publication I have a right to seek legal redress but cannot exercise that right without information being held by Google Inc and Google Kenya Limited regarding the owners of the Daily Post,” she said.

The story was published in the wake of Ms Waiguru’s sacking of the then chairman of Youth Development Fund Gor Semelango.

The Cabinet Secretary had further sought court orders compelling Google to remove the said material from its search engine and from www.Blogger.com, a Google Inc. platform that hosts selected bloggers from around the world.

READ: Should Google pay publishers, media owners for news links?

Ms Waiguru had told the court that her quest to seek legal redress for the said damage to her reputation was being frustrated by Google’s refusal to furnish her with the identities and contact details of the Daily Post’s owners.

The Director of Criminal Investigations Ndegwa Muhoro is enjoined in the suit as an interested party.

Google Kenya says in its application that it can neither pull down the offensive story nor provide the information wanted by Ms Waiguru as it only provides support services.

The Kenyan arm of the search engine giant has distanced itself from Google Inc., stating that it has no access to the information the minister is seeking, as it does not own or control the platform that hosts the offending website.

Ms Waiguru opposed Google Kenya’s application insisting that the Kenyan operation is a subsidiary of Google Inc. hence it ought to have the information she needs.

The relationship between Google Kenya and Google Inc, Ms Waiguru says, puts the former in a position of responsibility for the mistakes of its parent firm.

“Google Kenya is a party to the wrongdoing of Google Inc as are the owners, authors and publishers of the Daily Post. Even if it does not have the information sought at hand, it has the means of obtaining such information,” Ms Waiguru insists.

Google Kenya had also argued that Ms Waiguru had not shown any violation of her rights on its part. The firm further said that Ms Waiguru’s petition was a defamation suit against a wrong entity disguised as a constitutional petition.

“Ms Waiguru has failed to disclose a cause of action against Google Kenya, which is incapable of complying with any orders that may be granted by this court,” added Google Kenya.

Ms Waiguru, however, told Justice Lenaola that removing Google Kenya from the suit would create a risk of Google Inc not submitting itself to the borders of the court, which would lower her chances of finding justice.

Google Kenya says in an affidavit filed in court that it outlined in an email to Ms Waiguru the process she needs to follow to get the information she wants, and that it expressly informed her on May 15 that it was not in a position to get the said information.

The judge ordered that the matter be put down for hearing, and directed the parties to appear before him on January 22.