Search Engine Snippets Protected By Section 230–O’Kroley v. Fastcase
The plaintiff’s vanity Google search results included the following snippet: “indecency with a child in Trial Court Cause N . . . Colin O’Kroley v Pringle.” The linked result (to Google Book’s indexing of Texas Advance Sheet–see image) contained a summary of the child indecency case preceding the listing for O’Kroley’s totally unrelated lawsuit. O’Kroley asserted that this search result snippet harmed him, so he demanded $19.2 trillion in damages (GOBOGH!). The trial court said no, citing Section 230. The appeals court, in a short but surprisingly published opinion, affirmed.
Seeking to encourage websites like Google to reproduce content from other Internet users, Congress enacted the Communications Decency Act, which applies to “interactive computer service provider[s]” and which immunizes them from claims that seek to treat them as “publisher[s]” of third-party content. Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 409 (6th Cir. 2014). “No cause of action may be brought,” the Act says, “and no liability may be imposed under any State or local law,” for any claim that purports to treat an “interactive computer service” “as the publisher or speaker of any information provided” by someone else.
That’s what we have here. Google is an interactive computer service, an entity that provides “access by multiple users to a computer server.” And all of O’Kroley’s claims treat Google as the publisher or speaker of the allegedly defamatory content on its website, even though a separate “entity [was] responsible…for the [content’s] creation.” Under the Act, Google thus cannot be held liable for these claims—for merely providing access to, and reproducing, the allegedly defamatory text. “If a website displays content that is created entirely by third parties, . . . [it] is immune from claims predicated on that content.” Jones, 755 F.3d at 408; see Klayman v. Zuckerberg, 753 F.3d 1354, 1357–59 (D.C. Cir. 2014).
O’Kroley insists that Google did more than merely display third-party content. The company was “responsible,” he maintains, for the “creation or development” of the content, making it liable. Google, true enough, performed some automated editorial acts on the content, such as removing spaces and altering font, and it kept the search result up even after O’Kroley complained about it. But these acts come within “a publisher’s traditional editorial functions”—“deciding whether to publish, withdraw, postpone or alter content”—and thus Google remains eligible for the statute’s immunity. Jones, 755 F.3d at 416; see Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). “[T]he term ‘develop,’” we have explained, does not “include the functions of an ordinary search engine.” Jones, 755 F.3d at 409; see Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1167 (9th Cir. 2008) (en banc).
Nor did Google’s alterations “materially contribute to the alleged unlawfulness of the content.” O’Kroley points to the ellipsis that separated “indecency with a child” from his name and case information. Doesn’t that mean, he asks, that Google is “responsible for what makes the displayed content allegedly unlawful”—linking him to a crime he didn’t commit? No, it does not. For Google did not add the ellipsis to the text. It was already in the Texas Advance Sheet’s case preview. Because the Act immunizes Google for reproducing this third-party content, the district court correctly granted Google’s motion to dismiss.
The ellipsis helps the court sidestep two possibly thorny doctrinal issues. First, even thought it uses an automated process to generate search result descriptions, Google’s technology assembled the snippet components, so in that sense the snippet represents Google’s editorial expression. Second, O’Kroley implicitly argued that search engine users would read the two snippet components as a single editorial statement. O’Kroley didn’t offer a consumer study supporting that conclusion. However, assume for a moment that a future well-funded and properly motivated plaintiff could introduce evidence that consumers interpreted the two snippets as a single unified whole, and thus took away the impression that O’Kroley had committed indecency violations. If that were true, Google would have gone beyond merely assembling user star ratings into a single overall star rating (see, e.g., Gentry v. eBay; Kimzey v. Yelp); and it would have gone further than PissedConsumer’s excerpting of consumer reviews and dissemination of those excerpts via Twitter. This would be because Google would have arguably constructed new meaning out of the third party’s words, much like the Roommates.com example of deleting a negative word to change a message’s meaning (e.g., “by removing the word “not” from a user’s message reading “[Name] did not steal the artwork” in order to transform an innocent message into a libelous one”).
On the other hand, this ruling may be a variation of the precedent that online links to sources defeat a defamation claim because the linked citations clarify and qualify the statements. See, e.g., Adelson v. Harris; Redmond v. Gawker. Or, perhaps the court is saying (again without proof) that everyone knows search engine snippets are only an incomplete preview of the indexed page, so we expect reasonable searchers to investigate the indexed page before relying upon snippets.
Given how much this case turns on what meaning searchers ascribe to snippets, imagine how this case might have looked in the 1990s when search engines operated differently and searchers had much less experience with them. Those conditions can easily lead to judicial freakouts and bad decisions. In contrast, now that most of us have used Google’s search engine for years, dozens of times a day, we intuitively “get” how it works well enough to avoid freakouts.
Then again, the Maughan case from 2005 also ruled in favor of Google for confusing snippets, so perhaps this particular issue has been clear for a long time. In my post on the O’Kroley district court ruling, I concluded “Section 230 bars liability for search snippets based on third party content, however prepared.” This case seemingly cements that conclusion.
The Streisand Effect
In a snarky and perhaps even condescending “don’t let the door hit your behind” closing, the court points out how, by litigating this case, the Streisand Effect is working for (or against) O’Kroley:
In most respects, O’Kroley didn’t accomplish much in suing Google and the other defendants. He didn’t win. He didn’t collect a dime. And the search result about “indecency with a child” remains publicly available. All is not lost, however. Since filing the case, Google users searching for “Colin O’Kroley” no longer see the objectionable search result at the top of the list. Now the top hits all involve this case (there is even a Wikipedia entry on it). So: Even assuming two premises of this lawsuit are true—that there are Internet users other than Colin O’Kroley searching “Colin O’Kroley” and that they look only at the Google previews rather than clicking on and exploring the links—it’s not likely that anyone will ever see the offending listing at the root of this lawsuit. Each age has its own form of self-help.
I’ve complained before about courts overassuming the implications of a snapshot of search results order (Bitchen Kitchen; Uber v. Uber). Search results ordering can change moment-to-moment in big and small ways, and it can differ by person based on personalized results; plus different interfaces show more or fewer results, so even results that are ordinarily buried for most searchers might still be seen immediately by searchers in different interfaces. Therefore, for all we know, tomorrow the troublesome snippet could float to the top for all searchers. Fortunately, this court makes it clear that its ruling stands regardless of what search results position the snippet occupies.
What the court describes as “self-help” is, in fact, the well-known reputation management technique of burying bad results by manufacturing positive content and getting the latter to dominate the top search results. I wonder if the court really intended to celebrate that controversial technique. After all, it can and sometimes is misused to obscure important negative information by flooding the search engine with meaningless fluff under the control of the person in question.
Case citation: O’Kroley v. Fastcase, Inc., 2016 WL 3974114 (6th Cir. July 22, 2016)