Google Gets Easy Section 230 Win in DC Circuit–Bennett v. Google

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled. Also, I have several other Section 230 rulings to blog that I’ll get to eventually.]

pierson screenshotI previously described the facts of this case:

Dawn J. Bennett was a financial advisor in major trouble with the SEC. She also has a sporting apparel company. She hired an SEO, Pierson, to improve the search engine indexing of her website. After a payment dispute, Pierson posted a blog post that starts out “DJ Bennett, the luxury sporting goods company, does not pay their employees or contractors.” Bennett demanded Google de-index the blog post, and then sued Google for defamation and more when it didn’t.

One factual ambiguity that crept into the appellate opinion: The appellate opinion discusses Blogger’s “Content Policy.” However, I believe the post resided only on Pierson’s domain, not on the Blogger platform. Therefore, I think this is really a search engine de-indexing case, not a blog hosting case.

The district court ruled for Google. In a brief opinion, the DC Circuit affirmed.

The DC Circuit applied the familiar 3 part test for Section 230 immunity:

Provider of ICS. Google qualifies, as other courts have held.

Provided by Another Information Content Provider. The plaintiff alleged that, Pierson, not Google, created the content in question.

Treated as Publisher/Speaker. The court’s discussion is worth quoting in full:

Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.”

This opinion says that removal/withdrawal decisions are a core function of publishers, so Section 230 should apply to any lawsuit trying to force removal of third party content. That’s a helpful ruling for Section 230 defendants. I have a short essay coming out imminently that explores the removals-as-publishing issue more. The opinion also takes a swipe at the ruling, which (as I wrote about in my Top 10 Section 230 Rulings essay) I continue to believe is waning in influence post-Doe v. Backpage. In a footnote, the court says (emphasis added):

We of course are not bound by extra-circuit precedent but we nonetheless take a moment to distinguish, concluding that it cannot bear the weight of Bennett’s reliance because it marks an outer limit of CDA immunity—a limit that this case does not even approach.

I think that’s an excellent characterization of Plaintiffs treat like the seminal Section 230 case, but it’s really just an edge case.

Implications. This case follows the DC Circuit’s endorsement of Section 230 in Klayman v. Zuckerberg, so the opinion mostly tells us what we already knew. However, with this opinion’s strong language and the amplification of the Klayman ruling, the DC Circuit is emerging as one of the Section 230 defendants’ best strongholds–far better than the Ninth Circuit, where every Section 230 case feels like a random lottery drawing.

A Personal Note. The opinion twice cites my essay with Prof. Jeff Kosseff of the US Naval Academy, “Commemorating the 20th Anniversary of Internet Law’s Most Important Judicial Decision.” This short (~500 word) essay introduced the package of 2 dozen essays discussing the 20th anniversary of Zeran v. AOL. (If you haven’t read the package, I again recommend it; it really is terrific). Jeff and I collectively probably spent less than 2 hours working on the introductory essay; I spent many more hours writing my actual contribution to the package on the possible identity of perpetrator of the crimes against Zeran. This is at least the second time a federal appellate opinion has cited an essay I knocked out instead of one of my painstakingly drafted and laboriously prepared academic articles that consume hundreds of hours of my time. (The other example was Judge Posner’s citation to a blog post of mine that I whipped out in 30 minutes). As I tell my Internet Law students when we cover the Moreno v. Hanford Sentinel case, we need to own all of our words all of the time. We don’t get to pick which of our writings other people choose to engage with.

Case CitationBennett v. Google, LLC, 882 F.3d 1163 (D.C. Cir. Feb. 23, 2018)