Search Engines Aren’t Liable for Gambling Ads Per 230–Cisneros v. Yahoo

November 25, 2008 · by · in Content Regulation, Derivative Liability, Marketing, Search Engines

By Eric Goldman

Cisneros v. Yahoo, CGC-04-433518 (Cal. Superior Ct. “Tentative Trial Decision” Nov. 6, 2008)

I am frequently asked if 47 USC 230 protects websites for claims based on the ads they run. My answer is emphatically “yes” unless the claim relates to IP, federal criminal law or the ECPA. The fact that the third party content is advertising is irrelevant to the immunization, and so is the fact that the website is being paid to display the allegedly tortious material. I have never organized the 230 jurisprudence to identify all of the cases that confirm immunization for third party ads, but two examples come to mind: (1) the eBay cases over listings, such as the Stoner and Gentry cases, and (2) Ramey v. Darkside Productions. Because it reinforces the lack of liability for third party ads, I should add that 230 protects websites for their own ads in some cases–see here.

However, Internet gambling can violate federal criminal law, and sites associated with third party Internet gambling could drop out of 47 USC 230 coverage accordingly. However, this exclusion only applies when it’s a federal criminal agency bringing the enforcement action. Furthermore, when it relates to gambling ads, the criminal claim can be trickier, and the First Amendment can provide some protection for the ads. Nevertheless, I understood why the search engines settled up with the DOJ over gambling ads. They may have had powerful defenses, but 230 wasn’t one of them, and it may have been cheaper/smarter to settle up than continue to fight.

In contrast, when a state agency or a private plaintiff complains about a website running third party gambling ads online, the law clearly says that the plaintiff should buzz off. A recent ruling in a long-running lawsuit (filed Aug. 2004; see John O’s post from 2005) confirms that, proposing to dismiss a private plaintiffs’ lawsuit against Google and Yahoo because it’s preempted by 47 USC 230 (among other reasons).

The plaintiffs’ 17200 unfair competition lawsuit had already taken some hits along the way, including a ruling that damages weren’t available. This left only injunctive and declaratory relief on the table, but the injunctive relief claim was effectively mooted by the search engines’ settlement with the DOJ (which, interestingly, the court does not directly discuss).

The plaintiffs persisted, alleging that some gambling ads slip past Google’s and Yahoo’s efforts to suppress the ads. The court expresses some sympathy for the filtering challenge, noting that “much like bacteria that mutate in order to survive antibiotics, would be on-line gambling operators change their tactics to escape detection, necessitating different enforcement techniques by the defendants.” (This sounds like a good basis for a 47 USC 230(c)(2) dismissal, also not discussed by the court). The court gives props to the defendants’ suppression efforts and refuses to promulgate a technology-based injunction telling the search engines how to run their business, saying “the defendants are doing as good a job as possible at removing on-line gambling links, and that job is far better than anything this court could come up with in an injunction.”

The 230 discussion is pretty straightforward. One nice touch: the court explicitly talks about the plaintiffs’ allegations that Google and Yahoo were “aiding and abetting” the illicit gambling. Citing the 7th Cir. Doe v. GTE ruling from 2003, the court correctly says that 230 trumps aiding and abetting claims, even if Google and Yahoo made money from the advertising. This is a good reminder that “aiding and abetting” or similar claims (like conspiracy) should not be a viable plead-around to 47 USC 230.