Want To Scrub Google Search Results In The US? Tough–O’Kroley v. Fastcase

shutterstock_151417637I’m choosing to live in a parallel universe where the ECJ’s Google scrub-search-results ruling simply doesn’t exist. I know it’s a fantasy world, but I’m happier there. Fortunately, here in the US, the ECJ ruling couldn’t happen. The First Amendment bars the mandated scrubbing of truthful search results, and 47 USC 230 blocks any effort to require search engines to scrub third party results. I like the US rule better.

Today’s case gives us a good example of the growing divergence between US and EU search results. O’Kroley did a vanity search and got the following search results snippet:

Texas Advance Sheet March 2012–Google Books Result books.google.com/books? id=kO1rxn9COwsC …


… indecency with a child in Trial Court Cause N … Colin O’Kroley v. Pringle. (Tex.App., 2012). MEMORANDUM OPINION On February 9, 2012, Colin O’Kroley filed in.

I can see why O’Kroley would be upset, and it’s a fine example of how Google’s automated search snippet creation may not provide the most useful information. O’Kroley argued:

Google’s automated algorithm excerpted language from the Texas Advance Sheet to create the physical juxtaposition of two sentence fragments separated by an ellipsis, and that this resulting “snippet” is defamatory, although the underlying information from the Texas Advance Sheet, when read in its entirety, clearly is not.

The court doesn’t want to hear it:

the undersigned Magistrate Judge has found no case that makes the precise claim that O’Kroley makes here—that the underlying information, viewed in its entirety, is not defamatory, but that it has been rendered defamatory by Google’s automated editing process that juxtaposed two sentence fragments in the snippet. Nevertheless, based upon the “robust” immunity afforded under Section 230, the undersigned Magistrate Judge finds that the editorial acts of Google creating the offensive search result are subject to statutory immunity. For the foregoing reasons, the undersigned Magistrate Judge finds that Google is immune from all claims in the complaint, and that Google’s motion to dismiss must be granted.

The court didn’t cite Maughan v. Google even though that case addressed the same basic facts (misleading search snippets based on accurate sources), perhaps because the reported Maughan appellate opinion doesn’t directly address the Section 230 issue (though, as I recall, the unreported lower court ruling was explicit). To the extent the Maughan and O’Kroley  judges reached the same conclusion independently, then it reinforces that Section 230 bars liability for search snippets based on third party content, however prepared.

Note how this ruling goes way further than the ECJ ruling would permit. Here, O’Kroley isn’t trying to erase links to the Texas advance sheets; instead, he’s complaining because the automated snippet generation (allegedly) added misleading implications. Still, he gets no love in court.

Lawsuits to erase truthful search result listings are even more clearly doomed under 47 USC 230. I don’t have a comprehensive list of US lawsuits where individuals tried in court to scrub their vanity search results, but here’s a list of what I could find on my blog in a few minutes of searching (I’m excluding the corporate trademark claims). I assume most or all of these cases come out differently in the EU post-ECJ ruling. Yay for reduced-functionality search engines!

* Google Immunized for Its Search Results–Mmubango v. Google
* Section 230 Still Keeping the Pro Se Plaintiffs at Bay–Klayman v. Facebook, and More (discussing three vanity cases: Merritt, Nieman and Getachew)
* $1 Billion Pro Se Privacy Lawsuit Against Google Fails–Shah v. MyLife
* Bev Stayart Racks Up Two More Losses–Stayart v. Yahoo and Stayart v. Google
* Google Not Liable for Suggested Vanity Searches–Stayart v. Google
* Yahoo’s Search Results Snippets Aren’t False Endorsement–Stayart v. Yahoo
* Ask.com Not Liable for Search Results or Indexing Decisions–Murawski v. Pataki
* Google Wins Lawsuit Over Search Results–Maughan v. Google

I’m sure I’ve blogged other cases. Meanwhile, other posts worth revisiting:

* In Its “Innocence of Muslims” Ruling, the Ninth Circuit is Guilty of Judicial Activism–Garcia v. Google
* California’s New ‘Online Eraser’ Law Should Be Erased
* When Should Search Engines Ignore Court Orders To Remove Search Results?
* First Amendment Protects Online Republication of Court Records–Nieman v. VersusLaw

Case citation: O’Kroley v. Fastcase Inc., 2014 WL 2197029 (M.D. Tenn. May 27, 2014)