Google Isn’t Liable for Scam Ads–Ynfante v. Google

June 5, 2023 · by · in Content Regulation, Derivative Liability, Marketing

Ynfante responded to a scam ad shown when he Google-searched for “ebay customer service number,” and he called a phishing farm instead of eBay. “After Mr. Ynfante divulged his account information to the scam helpline, the scammers made purchases on behalf of Mr. Ynfante and gained access to sensitive personal information such as his home address and Social Security number.”

Google defended Ynfante’s lawsuit on Section 230 grounds:

  • Google is an ICS provider. Cites to LeadClick Media and Marshall’s Locksmith.
  • “there is no doubt that the complaint treats Google as the publisher or speaker of information….the plaintiff’s causes of action against Google rest solely on the theory that Google did not block a third-party advertisement for publication on its search pages. But for Google’s publication of the advertisement, the plaintiff would not have been harmed. The plaintiff therefore seeks to hold Google liable for its actions related to the screening, monitoring, and posting of content, which fall
    squarely within the exercise of a publisher’s role and are therefore subject to Section 230’s broad immunity.”
  • The ad came from a third-party.

To work around Section 230, the plaintiff argued he was suing because Google represented that users “should feel confident that ads are not fraudulent or misleading” and thus had a duty to vet and verify ads to ensure they met these standards. The court replies: “Vetting and verifying are analogous to the quintessential duties of a publisher to screen and monitor content.” I agree 100%, and this line seems relevant to the court challenges to the age-appropriate design codes as applied to UGC publishers (and many other pending attempts to work around Section 230).

In an attempt to fit into Roommates.com, the plaintiff also alleged that “Google helped to develop the scam advertisement by taking such actions as placing it at the top of the search page, distinguishing it from other search results, and adding an official ‘Ad’ label in the top left corner of the advertisement.” Citing the Force case, the court replies that Section 230 steps aside only if the defendant “directly and materially contributed to what made the content itself unlawful.” That wasn’t the case here: “Google did nothing to make the content of the advertisement itself more unlawful.”

The court summarizes: “it is plain that Section 230 protects Google from liability in the negligence and false advertising action brought by Mr. Ynfante.”

This result reaches the same conclusion that the cited Goddard v. Google case reached 15 years ago, as well as the more recent uncited Calise v. Meta case. It reinforces the simple point: online publishers aren’t liable for third-party ads. Given the apparent elimination of ad quality standards at Twitter, this ruling is also good news for Musk.

Case citation: Ynfante v. Google LLC, 2023 U.S. Dist. LEXIS 96074 (S.D.N.Y. June 1, 2023)