Court Says Google Has A First Amendment Right To Delist Competitor's 'Spammy' Content

from the Sec.-230-not-so-much-though dept

Last summer, a Florida federal court reached some unusual conclusions in a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Google's delisting efforts weren't in "good faith." The reason cited was e-ventures' claim that the delisting was in "bad faith." So much for this seldom-used aspect of Section 230: the "Good Samaritan" clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for "viewed in the light most favorable to the non-moving party." Apparently, Google's long history of spam-fighting efforts is nothing compared to an SEO wrangler's pained assertions.

The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Google's search rankings were protected speech, its statements about how it handled search engines weren't. And, for some reason, the court felt that Google's ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its "editorial judgment."

It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.

Fortunately, this wasn't the final decision. As Eric Goldman points out, last year's denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But there's not much to celebrate in this decision as the court has (again) decided to route around Google's Section 230 "Good Samaritan" defense.

Regarding 230(c)(2), the court says “spam” can qualify as “harassing” or “objectionable” content (cite to e360insight with a but-see to the Song Fi case). Still, the court says e-ventures “brought forward enough circumstantial evidence” about Google’s motivations to send the case to a trial. By making it so Google can’t even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.

Had it ended there, Google would be still be facing e-ventures' claims. But it didn't. The court takes another look at Google's First Amendment claims and finds that the search engine provider does actually have the right to remove "spammy" links. Beyond that, it finds Google even has the First Amendment right to remove competitors' content. From the order [PDF]:

“[T]he First Amendment protects as speech the results produced by an Internet search engine.” Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“The choice of material to go into a newspaper . . .—whether fair or unfair—constitute[s] the exercise of editorial control and judgment” that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.

And the court walks back its earlier conclusion -- the one that seemed to find profit-motivated "editorial judgment" to be unworthy of First Amendment protections.

Google’s actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Google’s guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

The case is now dismissed with prejudice which bars e-ventures from complaining about Google's delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldn't. It's unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:

Of course Google can de-index sites it thinks are spam. It’s hard to believe we’re still litigating that issue in 2017; these issues were explored in suits like SearchKing and KinderStart from over a decade ago.

The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldn't prevail.

Filed Under: cda 230, first amendment, search results, section 230, spam
Companies: e-ventures, google

Court Says Google Doesn't Have A First Amendment Right To Drop A Site From Its Search Results

from the that's-not-good dept

About a decade ago, we wrote about a series of silly lawsuits against Google in which search engine optimizers sued Google because their search engine ranking sucked. All of these lawsuits went nowhere fast. The reason why seems fairly straightforward: it's Google's search engine, and it gets to decide how its algorithm works. Having the courts come in and start mucking with that gets problematic fast.

While I thought those kinds of cases went out of style a decade ago, apparently another SEO firm, called e-ventures, sued Google after the company called e-ventures' site "pure spam" and removed it from the Google Index. This is a level of punishment that Google has been known to slap on really egregious and sketchy SEO tactics. Google takes a pretty hard line on really scammy tactics, and even once famously banned BMW's website for spammy techniques.

Apparently, at some point, Google's web spam team decided that e-ventures was spamming as well, and removed its website. The company sued under a variety of theories, but mainly claims that it did nothing that violated any of Google's stated rules -- and furthermore that Google was misleading in some of its public statements about what it will and won't remove from the web, as well as how it alerts people to those removals. Google hit back with two responses in a motion to dismiss. First, it said that it's protected under CDA 230 for removing content and second that the choices it makes on how the search results are ranked are protected by the First Amendment.

Somewhat surprisingly, the district court has rejected both of these arguments. This is troubling for a few reasons, as we'll explain here.

First: the CDA 230 claim is a different one than we normally talk about with CDA 230. Normally we're focused on CDA 230(c)(1), which talks about a service provider not being treated as the publisher of content from users. Here, no one denies that this is about Google's own search engine and own actions. But Google is pointing to a different part of the law, sometimes known as the "Good Samaritan" clause in CDA 230(c)(2)(A), which says that no provider shall be held liable for "any action voluntarily taken in good faith to restrict access to or availability of material...." This was designed to actually encourage sites to take down sketchy or "obscene" content. Basically, it's saying that if you decide to take down some content you deem to be obscene it does not remove your Section 230 immunity, and it doesn't mean you're now required to take down content other people find obscene. Google's argument is that this applies to search removals as well, and since it's making a good faith effort to remove content it finds objectionable, it's protected from liability.

This argument seems pretty strong within the context of Section 230, but the court doesn't buy it, though it's reasons are kind of odd:

The CDA statutory immunity is an affirmative defense which plaintiff is not required to negate in its Complaint. The plain language of the CDA only provides immunity for actions “voluntarily taken in good faith.”... While the CDA defense may properly be considered if it is apparent from the face of the complaint, that is not the situation in this case. Here, plaintiff has included allegations within its Second Amended Complaint that Google failed to act in good faith when removing its websites from Google’s search results.

But that seems to wipe away much of CDA 230(c)(2)(A). So long as the plaintiff claims that a content removal is in "bad faith" you lose the immunity? That can't be right... but the court says it's fine for now.

Perhaps the bigger issue, though, is the First Amendment claim. Again, the court rejects Google's arguments, and tries to thread the needle carefully. It says that it agrees that Google's search rankings are protected by the First Amendment, but that the real issue here is not the actual search rankings, but rather the statements Google made about why it removes some sites.

While a claim based upon Google’s PageRanks or order of websites on Google’s search results may be barred by the First Amendment, plaintiff has not based its claims on the PageRanks or order assigned to its websites. Rather, plaintiff is alleging that as a result of its pages being removed from Google’s search results, Google falsely stated that e-ventures’ websites failed to comply with Google’s policies.... Google is in fact defending on the basis that e-ventures’ websites were removed due to e-ventures’ failure to comply with Google’s policies.... The Court finds that this speech is capable of being proven true or false since one can determine whether e-ventures did in fact violate Google’s policies. This makes this case distinguishable from the PageRanks situation. Therefore, this case does not involve protected pure opinion speech, and the First Amendment does not bar the claims as pled in the Second Amended Complaint.

This feels like the strongest point the court has, but it still feels pretty weak. Google's policies include some basic catch-alls, saying that it can choose to remove search results based on "policies." That is, it can basically decide what it wants in the search results. And that seems perfectly reasonable. It seems dangerous to think that courts can tell a website what must be included in their search engine.

The court also rejects another First Amendment argument in a way that also seems problematic -- saying that while "editorial judgment" is protected by the First Amendment, anti-competitive motives are not:

While publishers are entitled to discretion for editorial judgment decisions, plaintiff has alleged that Google’s reason for banning its websites was not based upon “editorial judgments,” but instead based upon anti-competitive motives.... Further, a fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution....

Two thoughts on this: first, the idea that Google is removing an SEO company's websites because of anti-competitive reasons seems ludicrous on its face. I mean, Google links heavily to a number of actual direct competitors all the time. It's beyond reason to suggest that it would target a small no-name SEO firm. Second, again, this semantic setup gives a massive out on the First Amendment. Just claim anything is not "editorial judgment" but "anti-competitive motives" and suddenly the First Amendment issue gets tossed aside?

The court also lets motions around trademark, unfair practices and tortious interference move forward, but they're basically rehashes of the points above. The only count it dismisses is a defamation claim, which was a clear nonstarter.

While the ruling doesn't mean that e-ventures will succeed overall, since these issues can be debated again in more detail as the case moves forward, it seems likely that Google may try to appeal the basis for these denials. No matter what you think of Google as an entity, having courts tell it what can and cannot be in its index seems very dangerous.

Filed Under: cda 230, first amendment, free speech, good samaritan, rankings, search engine, search results, seo, spam, web spam
Companies: e-ventures, google