Terminated AdSense Publishers Can’t Get Their Accrued Earnings–eOnline v. Google
The plaintiffs are publishers that participated in the Google AdSense program. They outsourced much of their content development to a service called TextBroker that pays authors between 0.7 and 5 cents per word (i.e., a 1000 word article makes between $7 and $50). Google deemed the plaintiffs in breach of their contract because they allegedly displayed ads on “autogenerated pages or pages with little to no original content.” The plaintiffs internally appealed within Google but were denied. Instead, Google terminated their participation in AdSense and kept $404k of accrued but unpaid earnings. The publishers sued for breach of contract. After 2 1/2 years of litigation, the court now easily dismisses their case.
The court recaps the evidence of the plaintiffs’ contract breach:
In one instance, Newman and Ashworth planned to publish a website with content purporting to discuss free website hosting services with topics such as “Free Websites” and “Free Servers,” and then run ads that did not offer free services. Newman explained in an email, “[t]he ads that will run won’t offer free, but our visitor won’t know that 🙂 There should be a decent amount of traffic in this space too.” Having selected profitable subject matters, Plaintiffs would then identify keyword phrases, such as “bad credit loans” or “medicare supplemental insurance,” to draw high-paying advertisements. Plaintiffs used the keyword phrases to write the titles for articles before writing the articles themselves. Plaintiffs sometimes produced up to 100 titles for yet-to-be-written articles based on a single keyword phrase. Plaintiffs would then provide the titles to Textbroker, who wrote the actual text of the articles. Plaintiffs would instruct Textbroker to use each keyword phrase at least three times per article. Plaintiffs paid about $5.00 per article. Plaintiffs “manage[d] which articles g[o]t written for which sites using which keywords.”…
the published content was frequently duplicative and/or lacking substance or value. For example, on their website NoCreditUSA, eight of the 18 webpages addressed how to obtain a credit card despite having a bad credit rating. Plaintiffs made essentially no effort to ensure their websites offered content of substance or value. Fishman would skim the articles to make sure that followed “English 101,” but she did not review for them for quality or accuracy. One of their websites purported to provide information on “How to Get Instant Approval Credit Cards With Bad Credit,” but the website included no instructions or directions for obtaining instant approval. But Fishman would make sure to check that each article repeated the keyword phrases several times. The visitors to Plaintiffs’ websites noticed and submitted complaints that the websites contained inaccurate and/or conflicting information. These facts show Plaintiffs engaged in a deliberate process to publish websites specifically to run high-paying ads—a violation of the Program Policies….
[Also,] Plaintiffs [had an] unambiguous plan to deceive visitors into believing that their websites had an active community of legitimate visitors when they did not.
I have no sympathy for the plaintiffs, and I’m glad Google kicked them out. However, the court’s narration doesn’t clearly distinguish the plaintiffs from thousands or millions of other AdSense publishers who splog or otherwise “spam” the search engines. I feel like I’m missing some “smoking gun” that explains why Google cracked down on these folks as opposed to the many other similarly-situated AdSense publishers. Nor am I clear why Google didn’t automatically or manually downgrade these sites’ search engine rankings so that traffic dried up.
Irrespective of the confusing nature of Google’s selective crackdown, the court’s legal analysis is straightforward. The plaintiffs frustrated the purpose of the AdSense publishers contract “[b]y creating websites specifically to run ads and by filling those websites with intentionally deceptive content,” which makes their contract breach material and justified Google keeping the accrued earnings.
I’m not clear how this case relates to Free Range Content v. Google, a class action lawsuit over Google’s retention of accrued AdSense earnings when it terminated publishers. Perhaps the plaintiffs opted-out of the class and chose to pursue their action individually…? If so, that may not have worked to their benefit. Google has tentatively settled the case for $11M, and the publishers might have been able to obtain payment out of the settlement fund despite their material breach.
Case citation: eOnline Global, Inc. v. Google LLC, 2019 WL 2121875 (N.D. Cal. May 15, 2019)