Google Avoids Another Lawsuit Over Rankings (For Now)–Roberts v. Google

By Eric Goldman

Roberts v. Google, No. 1-06-CV-063047 (Cal. Superior Ct. complaint filed May 5, 2006 but voluntarily dismissed)

In what he claims is the “first legitimate complaint vs google regarding search result issues,” Mark Roberts, a proprietor of two e-commerce websites, filed a pro se complaint against Google for Google’s alleged mishandling of those sites’ rankings. After receiving a call from Google’s counsel threatening to file an anti-SLAPP motion against Roberts if he proceeded, Roberts voluntarily dismissed the complaint without prejudice. While Google may have dodged this lawsuit (at least, for now), it nevertheless highlights the burgeoning litigation over search engine rankings.

The Lawsuit

Mark Roberts runs two websites, and He alleges that the rankings of these websites inexplicably dropped. He claims that the website was ranked in the top 10 search results prior to April 2003 and then dropped out of the rankings; and was ranked as the #2 listing in a specific Google directory category (which I assume was drawn from DMOZ) on June 2005 and then was dropped from the category page. Similarly, the website was regularly in the top search result prior to April 2003 and after that was dropped from the index. Some of these omissions have been rectified.

Roberts principally alleges a breach of contract. He claims that Google’s “add your URL” feature constituted a unilateral offer, and part of the contract terms were various marketing representations that Google makes throughout its site, including

* Google uses PageRank to determine which pages are most important

* Google determines which pages are relevant to a search

* Google lists the most relevant and reliable results for searchers

Robert claims that he accepted Google’s offer by submitting his URLs to Google, and that Google breached by downgrading/de-indexing him. As an integral but unstated part of his claims, Roberts apparently believes that his sites are more relevant/important to searchers than the sites Google chose to display.

In addition to the contract breach, Roberts claims that Google made negligent misrepresentations and violated California’s unfair competition law (Business & Professions Code Sec. 17200).

After filing the lawsuit, Roberts received a preemptive phone call from Google’s attorney warning him that Google would file an anti-SLAPP motion against him if Roberts served the complaint. Google, in fact, did file an anti-SLAPP motion in response to the KinderStart lawsuit, and such aggressive behavior towards Roberts is consistent with Google’s standard practice of going on the offensive i9n litigation. Based on this conversation, Roberts voluntarily dismissed the lawsuit without prejudice. Although this might be the end of this particular threat, Roberts has told me that he plans to refile the lawsuit if he doesn’t get satisfactory reindexing.

The Continuing Legal Battle Over Search Engine Rankings

Regardless of the merits of this particular lawsuit, it follows the Search King and KinderStart lawsuits that, collectively, raise a critical question: who should decide the ordering of search results?

There are several options. Plaintiffs could ask judges to decide the ordering based on some judge-made criteria for relevance or importance. Or legislators could get into the relevancy business and statutorily dictate algorithms or ordering. However, for reasons I explain in my paper on search engine bias, I think judges or legislators will do a markedly inferior job of producing useful search results than search engines will do guided by marketplace forces. Therefore, these lawsuits over search engine rankings pose risk not only to the search engines, but the robustness of our information economy generally.

Nevertheless, this lawsuit (along with others, like the Yahoo “syndication fraud” lawsuit) demonstrates that plaintiffs are carefully trolling through search engine disclosures and marketing collateral looking for litigation bait. Search engines should scrub their disclosures and ensure that future disclosures are carefully QAed.

UPDATE: Techdirt offers a very sensible lesson: “From a business owner’s perspective, it’s your responsibility not to become too dependent on a single supplier. Basing your entire business on your great Google rank is extremely risky — and if your only backup strategy is to sue Google for not ranking you higher, it suggests that your business strategy needs a pretty massive rewrite.”