47 USC 230 Preempts Sponsorship/Endorsement Liability–Black v. Google

By Eric Goldman

Black v. Google, Inc., 2010 WL 3222147 (N.D. Cal. Aug. 13, 2010). The complaint.

The Blacks run a roofing company. They claim someone posted an anonymous defamatory comment on an unspecified Google website, and this “comment misrepresents their work and has devastated their businesses.” They sued Google for several business torts (although, interestingly, not defamation). I posted the complaint back in May and tweeted:

Roofing contractor sues Google over negative business review. Hello 47 USC 230!

I believe the plaintiffs and 47 USC 230 are now properly introduced. The court efficiently gets to the heart of the matter: “A fair reading of Plaintiffs’ complaint demonstrates that they seek to impose liability on Defendant for content created by an anonymous third party…Based on these allegations, Defendant is immune from their suit.”

The plaintiffs, working pro se, try to get around 230 by arguing that they seek to hold Google liable for its “programming.” Neither the judge nor I are clear on what that means, but we’re both clear that the allegation doesn’t change the answer.

Next, the plaintiffs argue that Google endorsed or sponsored the allegedly tortious content. The court recognizes this for exactly what it is: “an end-around the prohibition on treating it as the publisher or speaker of it.” The court continues: “Such a ploy, if countenanced, would eviscerate the immunity granted under § 230.”

I heartily agree. I made this exact point when critiquing the FTC’s Endorsement and Testimonial Guidelines, where the FTC sought to impose liability on advertisers for online content posted by independent third parties; and I made a similar point when critiquing the SEC’s proposal to impose liability on issuers for linking to third party websites. This case is entirely clear that 230 preempts liability premised on endorsing or sponsoring third party online content. Hey, FTC and SEC, I hope you’re paying attention! The courts may not back up your expansive liability theories.

Finally, the plaintiffs argue that Google lacked an adequate dispute resolution procedure. 230’s immunity isn’t predicated on having such a procedure, and the court treats this as a subspecies of the unsuccessful argument that notice of a problem disqualifies the service provider from 230’s immunity.

Thus, an easy case leads to a quick dismissal with prejudice.

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