Judge Agrees: Perfectly Fine For Google To Deny Ad Placement For 'Honey Cures Cancer' Claims

from the quackery-perceives-policy-as-censorship,-refused-to-route-around-it dept

Eric Goldman brings us the dismissal of a lawsuit against Google that's… well, a bit on the unintentionally hilarious side. The lawsuit argues there's a First Amendment right for Google Ad placement -- one that circumvents Google's policies against allowing questionable claims like "Honey Cures Cancer!" -- and contains a request for $10 billion in damages.

El Reg first reported on the lawsuit, filed by a former IBM senior engineer. Apparently tired of the rigorous science involved in his day job, Shajar Abid decided to branch out into speculative fiction.

Abid, who goes by the first name "Shaq" on LinkedIn, claims to have developed "a divine cure for cancer" consisting of "only honey herb and spice." Google, he insists, will not allow him to advertise the product through AdWords.

He is seeking $10 billion for what he believes is a violation of his First Amendment speech and religious rights, for loss of business, and for pain and suffering. Also, he wants the opportunity to advertise on Google when people search for cancer cures.

Needless to say, it's a pro se lawsuit, which makes demands Google cover his legal costs a bit perplexing. In addition to the $10 billion, Abid wants the $88 he racked up in ad costs pre-cancellation to be nullified since there won't apparently be enough money to cover this if he wins.

But he won't win, something readers may have picked up from the first line of this post. There are many reasons he won't win, but going pro se and alleging Google's denial of prime cancer-curing ad placement is somehow a government action is but one of them.

Abid finds it odd Google won't let him claim honey cures cancer. Well, it will, but it just won't allow him to buy ad slots for this claim. Abid could start a blog or Facebook page or whatever, but he won't be allowed to promote it with Google AdWords. Prior legal issues with Google's pharma ad sales have resulted in policies that won't allow someone to claim they can cure cancer with honey, no matter how much they firmly believe it will. And Abid believes honey cures cancer as hard as anyone who stands to profit from this claim can possibly believe something. From the lawsuit [PDF]:

Last weekend on Friday March 31 -2017, i received an email that my site had been suspended. It was against google policies as they have details about selling pharmaceuticals etcs..

I said ok, I will call and tell them, i studied the google rules, tell me what to change.

So the first girl I talked to gave a half dozen modifications to do, including take out "divine cure for cancer," which is my sincerely held religious belief that it is.

But what she doesn't know is I have done an intensive pharmacognosy study as well as other in depth proprietary research.

I feel this was the first violation, obstructing my 1st amendment rights, however the kind and noble judge interprets.

References are cited.

My philosophy of medicine is based on Moses's wisdom. One time Mose got sick, so he prayed to God for guidance. God guided him to a plant. So he went and ate it. Then he was cured.

Also this:

I am combining a systems biology empirical approach based on prophetic medicine.

This culminates (sort of) in a Section 1983 claim, which is reserved for deprivation of rights by the government, which Google plainly isn't. (Or "even under the spirit of Title VII of the Civil Rights Act of 1964," as the complaint states hopefully.)

The judge points out the obvious in the dismissal [PDF]:

Plaintiff fails to state a § 1983 claim against Google. Plaintiff does not allege any facts suggesting Google is a government actor or was acting on behalf of the state.

And then notes Abid's opposition to Google's motion to dismiss states Google shouldn't even be a party to this lawsuit.

Moreover, Plaintiff’s Opposition appears to suggest that Google is not the proper defendant and that his claims in fact are against nonparty government entities. Opp’n at 3 (“My section 1983 claim should be applied against the US government, due to the gross negligence of both the FDA and the NIH[;] more than 1 year of work has gone into regulation for my small start-up only for FDA to trample my constitutional rights and NIH my civil rights.”). Accordingly, the Court DISMISSES Plaintiff’s § 1983 claim. As Plaintiff argues the FDA and NIH violated his rights, not Google, the dismissal shall be WITHOUT LEAVE TO AMEND.

There's a Sherman Act (antitrust) claim buried in the lawsuit as well, but the court doesn't like that approach either.

Plaintiff does not allege facts showing Google had a contract or agreement with LegitScript or any another entity that was intended to harm or unreasonably restrain competition. At most, Plaintiff alleges LegitScript was Google’s service provider. Mot. to Suppl. Pleadings ¶¶ 2, 12. But there are no facts showing Google sought to unreasonably restrain trade, let alone succeeded in doing so.

This will probably only confuse the plaintiff, who so persuasively argued Google was once found guilty of antitrust violations in another country.

I have attached proof Google has done anti-trustful things recently and has been punished by the EU.

The court also finds Abid's ads violated Google policy, which states it will not permit pharmaceutical ads for non-government approved products that present themselves as proven remedies for illnesses.

Everything is dismissed with Abid given a chance to amend his complaint to fix its numerous deficiencies. The only exception is the Section 1983 claim against Google, which is so far off base (Google isn't the government) that no amount of amending would fix it.

There's a big difference between feeling wronged and being actionably wronged. This lawsuit doesn't even come close to the latter. At this point, Abid has only some wounded pride and outstanding AdWords bill for $88. Filing pro se keeps the costs down but it doesn't do much for coherent legal arguments. And we're probably all better off with Google blocking ads that claim faith-infused honey cures cancer.

Filed Under: ad placement, adwords, filtering, first amendment, free speech, google ads, honey, honey cures cancer, shajar abid
Companies: google

Court Tosses Out Ridiculous Antitrust Lawsuit Against Google

from the nice-try,-redmond dept

A year and a half ago, we wrote about a bizarre antitrust lawsuit filed in Ohio state court by a small shopping search engine company most people haven't heard of called myTriggers. The details were particularly odd. First, myTriggers set up a line of credit with Google to buy AdWords advertisements. Then... it didn't pay. The company claimed that a rejiggered algorithm made the ads much more expensive than it expected. But that doesn't explain why it racked up a $335,000 bill that it refused to pay. You can put limits on your spend. Either way, Google went to court in Ohio to try to collect on the money owed.... and bam, myTriggers suddenly used that as an excuse to launch a giant antitrust lawsuit against Google in Ohio. And, on top of that, this tiny company in Ohio that no one had heard of somehow magically hired Microsoft's chief antitrust counsel, Rick Rule, who does not come cheap. As Eric Goldman noted at the time:

Assuming myTriggers even has the money, writing a $335k check to Google (and I bet Google would have taken less!) is almost assuredly cheaper than paying three law firms to mount an antitrust assault on a $20B/year behemoth. Assuming that myTriggers wants to maximize profits, then either (1) myTriggers thinks its odds are good enough that it will win AND make enough money to pay the 7 lawyers on the counterclaim's signature page plus their teams, or (2) the law firms struck an unbelievably sweet deal on fees.

Or... you know, perhaps someone else was financing the whole thing. Google has been pretty vocal about the fact that it suspects Microsoft is behind this. But, the bigger issue is that the case itself is a joke. Google can set up its ad ranking algorithms however it likes, and while this case was purposely filed in response to Google's attempt to collect in Ohio, since whoever was behind it knew that would keep it in an Ohio state court rather than a federal court, it turns out that the court might not have been as clueless as those who filed the lawsuit expected. That's because the case has been dismissed.

You can read the full ruling below. It consists of two key issues. First, Google tried to have the case dismissed under Section 230 of the CDA, claiming that as a service provider, it's not responsible for blocking or demoting ad content. This is a slightly different part of Section 230 than we usually discuss. This is the part that is designed to encourage companies to voluntarily filter "objectionable" content, and to not face liability for doing so. Here, the court ruled that ads don't qualify as objectionable content. The caselaw it relies on here is a little murky, but for the most part, this did seem like a bit of a stretch as an argument. So that wasn't very effective.

However, the case was still dismissed on a much bigger issue: which is that myTriggers failed to properly allege an antitrust violation. You would think that with all those big, fancy and expensive lawyers, they would have done a bit better. The problem, of course, is that to show antitrust you have to show harm to competitors. But, as the court notes, all myTriggers did was show (potential, possible) harm to myTriggers. In fact, part of myTriggers' own argument was to show how other vertical search engines performed much better in Google, which undermines myTriggers' argument:

"[T]o prove antitrust injury, the key inquiry is whether competition--not necessarily a competitor--suffered as a result of the challenged business practice."

Here, the counterclaim only alleges harm to myTriggers itself. In addition, myTriggers' counterclaims contain allegations that other competitive vertical search sites were indeed favored by Google. In paragraph 12 of its counterclaim, myTriggers alleges that "Google has entered these favorable agreements with Shopping.com, shopzilla.com, PriceGrabber.com, bizrate.com, NexTag.com * * *." Such an allegation undercuts myTriggers' argument that competition as a whole within the relevant market is being injured.

The court also notes that just because myTriggers thinks its been blacklisted, that's not a real claim. It's just a random guess by myTriggers.

There are a few other claims by myTriggers, and in each and every case, the court points out that it failed to establish a legitimate claim. It's a pretty complete rejection of the lawsuit, though you have to expect it'll be appealed/amended. This marks the second of a trio of such cases that has been tossed out by courts. One wonders if grandstanding politicians using these silly claims as evidence of Google antitrust violations may start to quiet down.

Filed Under: ad placement, antitrust, cda, ohio, search
Companies: google, microsoft, mytriggers