During its nearly two-decade existence, Google has responded to search engine–related lawsuits by arguing its PageRank algorithm is an opinion protected as speech under the First Amendment. In one of Google’s more recent challenges, a Florida federal court was not particularly friendly to the world’s most popular search engine.
Florida Judge John Steele denied Google’s motion to dismiss a suit alleging the global search engine leader removed hundreds of websites over competition concerns. In the process, questions have been raised about free speech in the information economy age and Section 230 as a legal defense, Fordham Law Professor Olivier Sylvain said.
In E-ventures Worldwide, LLC. v. Google, Inc., the Florida-based plaintiff alleges Google violated its own mission to “organize the world’s information and make it universally accessible and useful,” when it deleted 365 of E-ventures’ websites in 2014. Google’s lawyers argued unsuccessfully that 47 U.S.C. 230(c)(2) of the Communications Decency Act of 1996 protected the corporation from liability for removing E-ventures, which Google viewed as “pure spam,” from Google search results.
Section 230 (c) is a protection for “Good Samaritan” blocking and screening of offensive material often used by websites, online content providers, and interactive computer services to immunize themselves from claims of defamation, harassment, cyber bullying, and revenge porn.
“Google is not wrong to rely on Section 230 at least because previous cases have read the immunity broadly,” Sylvain said. “But here, the court understood the complaint as alleging that Google took down sites in bad faith, taking its action outside of 230 protection. The court focused on the clear and implicit purposes of the statute, which is to protect Good Samaritans, not protect bad actors.”
Google holds 63 percent of market share for searches in the United States and around 90 percent of global searches, according to German-based statistics company Statista. Given those numbers, the potential implications for policy and the information economy are massive, Sylvain said.
As the case moves to its discovery phase, more facts are needed to determine whether E-ventures’ websites were spam as Google alleged, and to what extent Google’s removal of the sites was consistent with its stated policy, the professor added.
E-ventures based its claim not on PageRank, as other companies who unsuccessfully sued Google have done, but rather a commercial element that seemingly contravened Google’s policy to make the web accessible. Such an argument can be considered on factual grounds at a later court hearing, Judge Steele ruled in Florida.
E-Ventures alleges Google temporarily expelled its sites from its search engine for “anti-competitive, economic” reasons. E-ventures markets search-engine-optimization services that help users attain increased search visibility without using Google AdWords, the company’s main source of ad revenue. After E-ventures filed suit, Google made its sites searchable again.
“Is that an admission on Google’s part or is Google protecting themselves from paying more damages?” Sylvain said, noting these questions, like many others, would almost certainly be answered in the discovery stage.
The competitive question central to E-ventures Worldwide v. Google makes it comparable to the 2003 case Search King, Inc. v. Google Technology, Inc. In Search King, Google successfully used the First Amendment to defend against allegations that it had intentionally lowered the PageRank of a competitor for advertising revenue on the grounds the plaintiff manipulated search methods.
It is possible that, when all information is revealed, E-Ventures could end the same way as Search King—with a dismissal.
“It may turn out this motion to dismiss decision was a happy but ephemeral victory for E-ventures,” Sylvain said, noting he is not counting Google out at this point.