Search Engines Aren’t Liable for Indexing ‘Scam’ Locksmith Listings–Baldino’s Lock v. Google
[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]
The plaintiff in this case, Baldino’s Lock & Key, brought a very similar lawsuit in 2014. It alleged that Google indexed scam locksmiths and allowed them to buy ads, and that conduct hurts legitimate locksmiths by forcing them to buy ads instead of getting traffic from organic results (or pay more for ads). In the prior lawsuit, the plaintiff argued Google’s conduct violated the Lanham Act and RICO. The district court dismissed on Section 230 and other grounds. The Fourth Circuit affirmed the dismissal, not citing Section 230 but still saying Google isn’t liable for third party conduct.
The plaintiff tried again. This time, it added Yahoo and Microsoft, styled the case as a putative class action, and alleged violations of the Lanham Act, the Sherman Antitrust Act, and 5 state laws. The case has the same outcome. The court dismisses all of the claims on Section 230 grounds, except the contract breach claim, which is dismissed on its elements.
Section 230. The court says that the search engines qualify as ICS providers and the complaint seeks to treat them as publishers/speakers. Therefore, the only Section 230 element in dispute is whether the claim is based on third party content:
The Locksmiths specifically rely on the Providers’ alleged creation of mapping information: when a scam locksmith reports that it is in a certain city, the Providers provide an array of mapping information that supplements the scammer’s claim, including “fictitious addresses, photos, map locations, and map pinpoints for scam locksmiths as well as driving directions to and from the fictitious locations.”
This argument goes nowhere:
the Providers’ offer neutral mapping functionality with no encouragement for websites to provide false or misleading location claims. The fact that scam locksmiths make use of these neutral mapping tools does not constitute “development” of the underlying location claims by the Providers, for purposes of the CDA…the Providers’ mapping information does not materially contribute to the alleged unlawfulness of the underlying information…it is the scam locksmiths who provide the original location claim, and the Providers have created a website that simply re-publishes that information along with associated mapping information
The court also sees no policy merit in the plaintiff’s claims:
In common sense terms, it is the scam locksmiths and not the Providers who are providing the information that potentially creates liability here….By presenting Internet search results to users in a relevant manner, Google, Yahoo, and Microsoft facilitate the operations of every website on the internet. The CDA was enacted precisely to prevent these types of interactions from creating civil liability for the Providers.
Breach of Contract. The plaintiffs failed to adequately allege a contract’s existence, but they will get another chance. In contrast, all of the Section 230-preempted claims were dismissed with prejudice, though they will surely reach the DC Circuit eventually.
Undoubtedly, this case raises all kinds of interesting and important policy issues. Are search engines being gamed by scam locksmiths? Do search engines enhance the visibility those scam locksmiths through supplemental location information? Do search engines look the other way on scam results because legit locksmiths will pony up cash to buy ads to overcome scammed organic results? What about other types of false indexed information, such as so-called “fake news”? What steps do we expect search engines to take to screen out false entries in their database?
Section 230 elegantly, but perhaps counter-intuitively, addresses these issues. Search engines are in a perpetual ongoing battle against gamers. Section 230 eliminates search engines’ liability for the temporary periods when the gamers win before the search engines’ corrective measures swing the pendulum back; and Section 230 protects search engines from liability for taking those corrective measures, which helps keep the gamers in check. So I hope the search engines are giving careful thought to the possibility that scammer locksmiths are winning, but I’m glad this lawsuit has failed again.
Case citation: Baldino’s Lock & Key Service, Inc. v. Google LLC, 2018 WL 400755 (D.C. D.C. Jan. 12, 2018)