Federal Court Rejects Former US Ambassador's Attempt To Sue Google Over Things Telegram Users May Or May Not Have Posted

Legal Issues

from the waste-of-everyone's-time-but-mostly-a-waste-of-the-plaintiff's-money dept

People feeling ways about stuff continue to file stupid lawsuits against all and sundry because, well, we have a pretty open court system (which is good!) and not enough lawyers willing to tell people their stupid lawsuits are unwinnable (not great!). [For everything else, there’s pro se.]

This completely foreseen ending at the hands of a federal court is not the result of a winnable lawsuit. It’s also not the result of an average person deciding they can lawyer themselves up (avert your eyes, children!). It’s someone who should know better being represented by someone who should definitely know better.

The plaintiff is Marc Ginsberg, who briefly served as a US ambassador. The lawyer is Keith Altman, formerly of Excolo Law, who has screwed plenty of clients by pretending it’s actually possible to sue social media services for the physical, deadly acts of terrorists. Excolo Law, along with shitty lawsuit boutique 1-800-LAW-FIRM, have yet to win any of the several lawsuits they’ve filed on behalf of victims of terrorism.

This lawsuit is no less stupid. (It’s stupider, actually.) Ambassador Ginsberg (as he insists on referring to himself in the lawsuit) sued both Apple and Google, claiming their failure to remove the Telegram app from their respective stores somehow wrecked up his life by potentially subjecting him to anti-Semitic content. How this happened is anyone’s guess, considering Ginsberg admitted in his lawsuit he himself has never downloaded the app or accessed any content (anti-Semitic or otherwise) posted by Telegram users.

“Breach of duty” Ginsberg (via Altman) claimed. Apple and Google both owed Ginsberg the right to be free of anti-Semitic content posted by third parties to third parties apps. Ginsberg would have been better served by withdrawing $350 from the bank and setting it on fire while his lawyer typed up an affidavit affirming his client had indeed torched the contents of his wallet in the presence of his legal representative.

Google moved to dismiss the suit three months after it was filed, pointing out literally nothing in well-settled US law said it could be held responsible for content posted by users of services Google did not directly control. (Even if Google did own Telegram, Section 230 would still protect it from this lawsuit. Google does not own Telegram, so the motion to dismiss could have just been “lolwut” in 72-point type and still have been just as effective.)

The court has agreed with the basic tenets of law, logic, and Google. Ambassador Ginsberg has wasted his filing fee and whatever he spent retaining the “services” of Keith Altman. The federal court says there’s nothing to sue over and has disinvited Ginsberg from continuing to assert there is.

Ginsberg tried to duck Section 230 by claiming this wasn’t about third party content (but it totally is). He claimed this was about Google (and Apple) not enforcing their own app store rules to eject apps that traffic in objectionable content. But this rule only applies to the apps themselves. It’s up to the platform providers to police the content of their users. And app store guidelines are just that: guidelines. They’re not legally binding agreements with app users. And they’re definitely not any sort of agreement with people who don’t even use the apps they’re suing about.

That just doesn’t work, as the court [PDF] points out:

Plaintiffs in the present case do not allege the existence of a contract – or indeed any interaction – between themselves and Google. Plaintiffs do not allege that Ambassador Ginsberg purchased his smartphone from Google or that he downloaded Telegram or any other app from the Play Store. Thus, the Barnes court’s rationale for finding that Section 230 did not bar Barnes’ promissory estoppel claim is not applicable here.

Section 230 applies. So does pretty much everything else, which means there’s nothing in California law that will help Ginsberg, either. There’s no negligent infliction of emotional distress by Google (since Google did not create the distressing content) and there’s no violation of California’s Unfair Competition Law (UCL).

Plaintiffs has not cited, and the Court has not discovered, any authority for the proposition that Google’s publication of guidelines for its app developers creates an enforceable duty to any purchaser of an Android device.

[…]

In the present case, Plaintiffs have not alleged facts showing that Google’s compliance with its developer guidelines was an agreed-upon benefit of the phone purchase transaction. Plaintiffs do not allege that Ambassador Ginsberg purchased the phone from Google, so no such agreement could have been reached at the point of sale. Plaintiffs point to Google’s guidelines for app developers who distribute apps through the Play Store. However, Plaintiffs do not allege any basis for Ambassador Ginsberg’s apparent belief that Google’s enforcement of those guidelines was part of his bargain with whomever he purchased the smartphone from. Consequently, Plaintiffs have not plausibly alleged that Google’s alleged failure to enforce its guidelines for app developers, that is, failure to remove Telegram from the Play Store, caused Plaintiffs to suffer economic injury.

So long, says the court, without adding “good luck.” This is the end (barring an appeal). There’s no argument to be had, no matter how much the plaintiff wants there to be.

The Court nonetheless concludes that leave to amend is not warranted because amendment would be futile. It is clear from the FAC [first amended complaint] that Plaintiffs’ claims are barred by Section 230 of the CDA, that Plaintiffs lack statutory standing under the UCL, and that the facts of this case do not give rise to liability for NIED [negligent infliction of emotional distress]. Plaintiffs have given no indication, either in their opposition brief or during oral argument, that they could allege additional facts to cure these deficiencies. To the contrary, Plaintiffs clearly have set forth the facts upon which their claims are based. In the view of the Court, those facts simply do not give rise to a viable claim against Google.

Based on its determination that amendment would be futile, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND.

Adios, ambassador. If the anti-Semitic content posted by some Telegram users bothers you, perhaps it’s best to keep doing what you were already doing: not downloading or using Telegram. How the hell you thought this was Google’s problem is completely inexplicable, although I imagine Keith Altman — the lawyer behind a whole bunch of similarly-misguided lawsuits — played a large part in this windmill joust.

Filed Under: app stores, keith altman, marc ginsberg, section 230
Companies: apple, google, telegram