Section 230 Helps Search Engine Defeat “Right to Be Forgotten” Lawsuit–Mosha v. Yandex

230-tattoo-300x300Looking holistically at the broad arc of Internet Law history, I could make a good case that the EU’s Right to Be Forgotten marked the beginning of the end of the modern Internet. It was the first time that a major democracy (the EU) affirmatively required Internet technology to be “dumber” for legal reasons rather than technical limits.

Despite its deep anti-technology and pro-censorial motivations, the EU’s RTBF has been a popular policy innovation among other regulators. It has proliferated to other countries, including Russia. It has also inspired a tsunami of other regulatory interventions that make other Internet technologies dumber than they need to be. Arguably, we might view the period right before RTBF’s launch as the high-water mark of Internet freedom. It’s been a straight line downhill since.

Predictably, RTBF has fostered a lot of censorship. Google has received nearly 900,000 EU delisting requests, though it has rejected a majority of those requests. Its rejections have spurred countless complaints that keep percolating through DPAs and the court system–a litigation machine that will churn ceaselessly in perpetuity. Those lawsuits produced a couple of important RTBF-related ECJ rulings this week that I hope to address in a future blog post.

Today’s case involves an RTBF lawsuit over non-deindexing, but it involves the Russian RTBF and the leading Russian search engine, Yandex. This case is a fine example of a multi-year delisting lawsuit that has spanned continents. It’s also a good reminder that RTBF won’t work under current US law.

Mosha claims that search results in (the Russian edition of Yandex’s search engine) defame him, such as “Yury Mosha–Exposing a Fraudster,” “Yury Mosha the Swindler,” “Yury Mosha the Rogue,” “Yury Mosha the Scammer,” and “Yury Mosha Deceived.” He asked Yandex to delist those results. Yandex refused. In 2017, he sued Yandex in Russia pursuant to Russia’s RTBF law. The Russian court ruled against Mosha after he and his lawyer unexpectedly (?) no-showed at the hearing. The US court summarizes the Russian court’s findings:

The Khamovniki Court held that Yandex, LLC’s refusal to de-index the websites was lawful and justified for numerous reasons: (1) Mosha presented no evidence, and the record did not reflect, that the sites distributed the information in violation of Article 10.3; (2) the Yandex search system on automatically indexes publicly available information on the Internet and does not distribute the information, so it is not liable for third-party content; (3) Russia’s constitution guarantees the right to freely share information; and (4) per Article 10.3, the websites contained information about activities with criminal features (i.e. Articles 158 (robbery) and 159 (swindling) of the Russian Federation Criminal Code) and the time limit for imposing criminal liability for those actions had not yet expired.

A Russian appellate court upheld this ruling on what appears to be procedural grounds.

In 2018, Mosha sued Yandex’s US subsidiary in New York for failure to delist the search results. The US court grants the defendant’s motion to dismiss.

International Comity. Yandex claimed res judicata as a defense because it won in Russia, which it said should preclude relitigation in the US. The court rejects this argument on several grounds, including the fact that Mosha was suing a different entity (the US subsidiary) with different claims than those at issue in Russia.

Yandex’s loss of the res judicata defense has a silver lining. Arguably, if Mosha had won the deindexing ruling in Russia and sought to enforce it in the US, we would not want to squelch Yandex’s defense on res judicata grounds. Instead, we would want to relitigate it under US law, which would almost certainly reject such deindexing. It makes me wonder if Yandex was short-sighted in bringing this defense or if it was playing some clever 4D chess with the hope of losing the defense here so that it would set a precedent for future cases where it wouldn’t want the defense. Or maybe they were so confident that they would always win international RTBF rulings that they would only be seeking affirmances in future US cases?

Defamation. The court says: “while the purported statement imputes fraud or misconduct to Mosha’s character, it does not do so in relation to his important business operations, i.e., Mosha does not plead his business significantly involves his Jewish heritage, or specifically says that he cheats his business customers….Additionally, Mosha did not plead that Yandex, Inc. published the defamatory statements; he merely references seventeen website links which he claims to contain defamatory information.”

Tortious Interference. The court says: “Mosha does not identify any specific contracts that were breached, the parties to said contracts, or how such contracts were breached—all essential elements for sustaining a claim of tortious interference….he makes no plausible allegations that Yandex, Inc. intentionally procured Mosha’s customers to breach their contract with him or that he suffered actual damages.”

.Section 230. The court says: “Yandex, Inc. has immunity under the CDA….Courts have widely held that as aggregators of third-party content, Internet search providers are interactive computer services, and as such, have immunity under the CDA.”  To get around Section 230, Mosha argued that the content violated federal criminal law. The court responds: “the § 230(e)(1) exception does not apply in civil actions, even assuming arguendo that civil litigants could ‘enforce’ criminal statutes through a separate civil remedies provision.” [Cite to Force v. Facebook, though there are several other cases in this line saying 230 applies to civil claims for federal crimes.]

This is a clean and decisive ruling, but it’s not the first time that a court has used Section 230 to reject an RTBF-style claim in the United States. Other precedents include Maughan v. Google Technology, Inc., 143 Cal. App. 4th 1242 (Cal. App. Ct. 2006); Murawski v. Pataki, 514 F. Supp. 2d 577 (S.D.N.Y. 2007); Shah v. MyLife.Com, Inc., 2012 WL 4863696 (D. Or. 2012); Merritt v. Lexis Nexis, 2012 WL 6725882 (E.D. Mich. 2012); Nieman v. Versuslaw, Inc., 2012 WL 3201931 (C.D. Ill. 2012); Getachew v. Google, Inc., 491 Fed. Appx. 923 (10th Cir. 2012); Mmubango v. Google, Inc., 2013 WL 664231 (E.D. Pa. 2013); O’Kroley v. Fastcase Inc., 831 F.3d 352 (6th Cir. 2016); Fakhrian v. Google Inc., 2016 WL 1650705 (Cal. App. Ct. 2016); Despot v. Baltimore Life Insurance Co., 2016 WL 4148085 (W.D. Pa. 2016); Manchanda v. Google, Inc., 2016 WL 6806250 (S.D.N.Y. 2016).

Case citation: Mosha v. Yandex Inc., 2019 WL 4805922 (S.D.N.Y. Sept. 30, 2019) (see the amended version issued October 30, 2019: 2019 WL 5595037),