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.


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  • icon
    PaulT (profile), 16 Feb 2017 @ 4:21am

    "e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated"

    Which, presumably, would have left them competing for their own rank with a lot of news stories about the dodgy tactics they used and the fact that they use methods that are specifically opposed by Google themselves. I'm sure potential clients would have been flocking...

    reply to this | link to this | view in chronology ]

  • identicon
    Scott Harrison, 16 Feb 2017 @ 4:33am

    Ruling bad for Google too...

    This part is especially damning for Google:

    Still, the court says e-ventures “brought forward enough circumstantial evidence” about Google’s motivations to send the case to a trial.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 16 Feb 2017 @ 5:46am

      Re: Ruling bad for Google too...

      Why is that "damning"? All I'm reading is that they think that there's enough for a trial to decide rather than being dismissed out of hand. That circumstantial evidence could simply be the same spin on perfectly normal procedures that we see here all the time if someone decides they don't like them.

      reply to this | link to this | view in chronology ]

    • identicon
      Canuck, 16 Feb 2017 @ 6:19am

      Re: Ruling bad for Google too...

      "Google has prevailed."

      Yeah, that's really damning...

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 16 Feb 2017 @ 7:09am

    It also suggested this court believed the more successful the business was, the fewer rights and protections it had.

    Experience teaches that this is not a bad rule of thumb. Remember, with great power comes great responsibility!

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 16 Feb 2017 @ 7:28am

      Re:

      "Experience teaches that this is not a bad rule of thumb"

      That's backwards in some cases. For example, by that standard a guy hosting videos that he's personally curated on a small site would be more protected than a YouTube style service. Which is the wrong way round - the large service with no direct knowledge of user activity until after the fact should be more protected than the single guy who knows every video intimately. To argue otherwise is to argue for total surveillance and/or the removal of many useful and important services, since direct liability would cause YouTube to have to either shut down or vet everything.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 16 Feb 2017 @ 8:41am

        Re: Re:

        Please bear in mind that a rule of thumb is neither absolute nor always accurate. What it is is something that is generally understood to be a good first-order approximation.

        reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 16 Feb 2017 @ 8:25am

    Appeal

    What happens when a court overturns the lower court? Do the judges get a talking too about how they incorrectly interpreted the law? Do judges get angry/upset when higher courts overturn their rulings?

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 17 Feb 2017 @ 2:25am

      Re: Appeal

      Whether they do or not is by-the-by. Higher court decisions trump lower court ones. I'm not sure about the "incorrect interpretation of the law" but I'd guess they don't get "a talking-to."

      reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 17 Feb 2017 @ 10:07am

    With prejudice

    it will likely attempt to appeal this decision.

    I thought dismissed with prejudice means the plaintiff cannot appeal.

    reply to this | link to this | view in chronology ]


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