Court Rejects Effort to De-Index Search Results–Manchanda v. Google

Rahul Manchanda, an attorney, claims he was defamed in Ripoff Reports and elsewhere. In 2013, he obtained a restraining order against some of the authors in New York state court. Manchanda then sought to expand that order to restrain Ripoff Report and the search engines from indexing the targeted posts. In 2014, the state court rejected that request on Section 230 grounds and rejected his trademark claim. In 2016, Manchanda sued the search engines directly for indexing the defamatory content and selling keywords using his trademarks. He also sought to hold the search engines in contempt of the 2013 restraining order–despite the 2014 ruling absolving the search engines of responsibility (yes, I’m as confused as you are about the contempt request).

The federal district judge efficiently but meticulously rejects all of Manchanda’s requests, in some cases on multiple grounds.

Section 230: The court says “all of Manchanda’s claims except those for trademark infringement, unfair trade practices, and false advertising are preempted by the CDA, which immunizes search engines from civil liability for reputational damage resulting from third-party content that they aggregate and republish….This immunity attaches regardless of the specific claim asserted against the search engine, so long as the claim arises from the publication or distribution of content produced by a third party and the alleged injury involves damage to a plaintiff’s reputation based on that content.” The court concludes:

Because Defendants were acting only as publishers of sites whose content caused Manchanda’s alleged injury, the CDA immunizes Defendants from liability. [cite to LeadClick] And the CDA’s broad protection for internet publishers also protects Defendants from any obligation to remove or de-index any links. [cite to Murawski.]

An easy Section 230 ruling.

Trademark Infringement. I believe this was the only still-pending trademark lawsuit against the search engines for selling keywords. The court seems to conflate the keyword sales with trademark liability for indexing third party articles referencing Manchanda’s law practice. No matter, the case flames out like the others (footnote & cites omitted):

None of the allegedly infringing websites is competing or affiliated with Manchanda (a lawyer) or his law firm. It is highly unlikely that any customer—much less “an appreciable number of ordinarily prudent purchasers”—would visit these websites and be confused as to their nature and origin. Moreover, courts have consistently held that a plaintiff cannot make out a claim for infringement where, as here, the use of a mark is for the purpose of identifying the markholder. Because Manchanda has failed to allege the use of his marks in commerce in a manner likely to cause confusion, his trademark claim must be dismissed.

As far as I know, there are no currently outstanding lawsuits challenging search engines’ practices of selling trademarked keywords. Another sign of how that issue effectively has been resolved.

Infliction of Emotional Distress. “Manchanda has not shown that Defendants’ allegedly injurious conduct here―namely, their aggregation and indexing of websites in their capacity as search engines―satisfies this high standard of outrageousness.”

Preclusion. The court says the 2013 order didn’t bind the search engines because they weren’t parties to the action and didn’t have an opportunity to contest it. Compare the atrocious Hassell v. Bird ruling on the same point. However, the 2014 ruling does provide collateral estoppel against Manchanda’s 2016 attempt to relitigate the same issues against the same defendants.

The court addressed another half-dozen issues that I omitted. Manchanda has already appealed this ruling to the Second Circuit. I wouldn’t be surprised if the Second Circuit writes a memorandum opinion affirming this ruling.

Case citation: Manchanda v. Google, Inc., 2016 WL 6806250 (SDNY Nov. 16, 2016). The complaint. The 2014 New York Supreme Court denial of Manchanda’s restraining order request under the name Anonymous v. Does 1-47.

Some related posts on de-indexing lawsuits:

* Google Isn’t Required To De-Index Negative Ripoff Report–Fakhrian v. Google
* Google Must Answer Lawsuit For Manually Removing Websites From Its Search Index–E-ventures v. Google
* Delayed Search Database Updating Isn’t Defamation–Ferrell v. Yahoo and Google
* More Section 230 Cases Than I Can Handle!
* Reports on Expunged Arrest Can’t Be Erased From the Internet–Martin v. Hearst
* Primer on European Union’s Right To Be Forgotten (Excerpt from My Internet Law Casebook) + Bonus Linkwrap
* Texas Appellate Court Erases Court Order To Erase Google Search Results
* Want To Scrub Google Search Results In The US? Tough–O’Kroley v. Fastcase
* Of Course The First Amendment Protects Baidu’s Search Engine, Even When It Censors Pro-Democracy Results
* Court Won’t Order Google To Lift Manual Block For ‘Thin Content’–ICF v. Google
* When Should Search Engines Ignore Court Orders To Remove Search Results?
* Google Immunized for Its Search Results–Mmubango v. Google
* Not Liable for Search Results or Indexing Decisions–Murawski v. Pataki