KinderStart v. Google Motions to Dismiss and Strike
By Eric Goldman
You may recall the pending lawsuit by KinderStart against Google for Google’s downgrade of KinderStart’s PageRank. My previous analysis here. I posted the initial complaint, although I understand that a first amended complaint was subsequently filed.
I think the motion to dismiss’ introduction elegantly frames the issue:
The Amended Complaint, in almost 200 paragraphs, raises what amounts to a single question: Who should determine how an Internet search engine identifies those websites that are most likely to be of relevance to its users? Since its inception, Defendant Google, like every other search engine operator, has made that determination for its users, exercising its judgment and expressing its opinion about the relative significance of websites in a manner that has made it the search engine of choice for millions. Plaintiff KinderStart contends that the judiciary should have the final say over that editorial process. It has brought this litigation in the hopes that the Court will second-guess Google’s search rankings and order Google to view KinderStart’s site more favorably. If KinderStart were right, and websites could use the courts to dictate what the results of a search on the Google search engine should be, neither Google nor any other search engine could operate as it would constantly face lawsuits from businesses seeking more favorable positioning. Fortunately, KinderStart’s position finds no support in the law.
KinderStart’s approach has been tried before. Over the years, authors who felt their books belonged on bestseller lists, airlines who thought their flights should be featured more prominently in airline flight listings, bond issuers dissatisfied with their ratings, and even website owners angry about Google’s ranking of their sites, have turned to litigation seeking to override such judgments. Each time, the courts have rejected such claims, recognizing that private businesses have a right to express these opinions freely. KinderStart’s many legal theories do not justify a different result. Because the First Amendment protects Google’s right to share its opinions about the relative significance of websites, KinderStart’s complaint must be dismissed.
The motion to strike (sometimes called an “anti-SLAPP” motion) is a special California proceeding to protect against lawsuits that inhibit protected speech. As the motion to strike explains:
Under Cal. Civ. Proc. Code § 425.16, a defendant may move to strike from a complaint claims for relief arising from defendant’s exercise of its free speech rights in connection with a public issue. In this case, all of KinderStart’s claims, but most obviously its free speech, defamation, and negligent interference claims, arise from Google’s protected speech. These claims seek to hold Google liable for expressing its opinion about the relative importance of Internet websites to the public (i.e., “PageRank”) through the operation of its well known Internet search engine. Put simply, KinderStart does not like the opinion that Google holds and shares with users about the significance (or lack thereof) of KinderStart’s website.
By KinderStart’s own admission, Google’s speech concerns matters of public interest. Accordingly, KinderStart’s claims challenging that speech must be stricken unless KinderStart can demonstrate a probability that it will prevail on them. This KinderStart cannot possibly do.
While it’s very typical to file an anti-SLAPP motion in a situation like this, filing the motion is consistent with Google’s standard practice of going on the offensive in litigation. If it wins the anti-SLAPP motion, Google may be entitled to attorneys’ fees.
UPDATE: I’ve posted more source materials in the case. See here.