First Amendment Protects Google’s De-Indexing of “Pure Spam” Websites–e-ventures v. Google

e-ventures does SEO. Google determined that e-ventures “egregiously” violated its webspam guidelines. As a result, Google de-indexed all of e-ventures’ sites. e-ventures claims Google had bad motivations for the de-indexing decisions. The evidence didn’t support this claim: “e-ventures’ own consultant told e-ventures that its websites were spam and ‘way out of bounds.’ And in its attempts to secure re-listing of its sites on Google, e-ventures admitted that its sites were littered with doorway domains and scraped content.” Nevertheless, e-ventures sued Google for Lanham Act unfair competition, Florida DUPTA, and tortious interference. I previously blogged the court’s surprising refusal to grant Google’s motion to dismiss. That ruling delayed the inevitable; the court has now granted Google’s summary judgment motion.

Section 230. The court rejects Google’s Section 230 arguments [irritated emoji]. The court says Section 230(c)(1) doesn’t apply to the removal of the plaintiff’s own content. The court distinguishes the Sikhs for Justice v. Facebook case and others, which reached directly opposite outcomes, because that reading would render 230(c)(2) superfluous. The court has a point about how Sikhs for Justice seemed like a 230(c)(2) case, but the court’s wrong that it makes 230(c)(2) superfluous because 230(c)(2) can still apply to cases where the plaintiff sues over the removal of third party content.

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.

First Amendment. So amazingly the court navigated Google out of the obvious Section 230 defense. It’s not all bad news for Google, however. Citing the Zhang v. Baidu case, the court says “[T]he First Amendment protects as speech the results produced by an Internet search engine,” so the “presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.” The court’s explanation:

First, as Google argues, the removal of e-ventures’ websites from Google’s search engines is not a false statement and is thus protected First Amendment speech. There is no dispute that Google made no public announcement regarding the removal of e-ventures’ websites or the reasons behind the removal. But even if Google had published a press release that e-venutures’ [sic] websites were violating Google’s guidelines, that publication would be protected because the statement is true. e-ventures’ websites were in violation of Google’s Guidelines, and thus the removal of those websites was true speech, if it was speech at all.

But there is a more fundamental reason why the First Amendment bars e-ventures’ claims. 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.

Implications. 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. What’s interesting about this case is that the judge gave e-ventures so much runway before shutting down the case. This shows why Section 230 is so important; if the judge reaches the right Section 230 result, the case should have ended on motion to dismiss over a year ago. Instead, lots of money was wasted on further motions and unnecessary discovery to reach the outcome we all knew was inevitable. I’m receptive to your thoughts about how we could tweak the system so that it handles cases like this better.

Case citation: e-ventures Worldwide v. Google, Inc., 2:14-cv-00646-PAM-CM (M.D. Fla. Feb. 8, 2017)

Case library:

* Opinion granting summary judgment to Google
* Google’s reply in support of its summary judgment motion
* e-ventures’ opposition to Google’s summary judgment motion
* Google’s motion for summary judgment
* e-ventures’ motion for discovery sanctions
* Google’s answer
* Denial of Google’s reconsideration motion
* Google’s motion for reconsideration
* Google’s motion for interlocutory appeal
* Opinion rejecting Google’s motion to dismiss. Blog post.
* e-ventures’ opposition to Google’s motion to dismiss
* Complaint