Section 230 Protects Google for Including Telegram In Its App Store–Ginsberg v. Google

February 21, 2022 · by · in Content Regulation, Derivative Liability, E-Commerce

The plaintiffs claim that violent extremists, anti-Semites, haters, and other malefactors use Telegram, and thus its availability in the Google Play Store violates Google’s Developer Guidelines. This is yet another remix of the old Noah v. AOL case, where a plaintiff argues that a negative behavioral restriction between a service and its users constitutes a promise to other users that such conduct won’t occur on the service. The argument failed in the Noah case two decades ago, it’s failed in many other cases since, and it fails again now.

Section 230

ICS Provider. Websites qualify.

Publisher/Speaker Claims. “Google’s alleged activity boils down to deciding whether to exclude material (Telegram) that a third party seeks to place in the online Play Store. Thus, Plaintiffs’ claims inherently require the Court to treat Google as the publisher of content provided by another.” The plaintiffs invoked the Barnes case to try to get around this. The court says the plaintiffs alleged negligence, not promissory estoppel, and Barnes applied Section 230 to the negligent non-removal claim. “As in Barnes, however, the undertaking that Google allegedly failed to perform with due care was removing offending content from the Play Store.”

Third-Party Content. “Telegram app was created by a third party, and…the alleged hate speech posted on Telegram also was created by third parties.” The plaintiffs cited Lemmon v. Snap, but the court responds: “Lemmon does not speak to the question presented by the third Barnes prong, whether the content at issue was created by a third party. Moreover, Plaintiffs in the present case do not allege a products liability claim or any other claim that would implicate the rationale of Lemmon.”

So Section 230 immunity ends the plaintiffs’ claims. The court then goes on to explain why the claims fail on their prima facie elements too. In other words, as usual, changing 230 wouldn’t change the results in this case.

CA Unfair Competition

“Plaintiffs do not allege any basis for Ambassador Ginsberg’s apparent belief that Google’s enforcement of those guidelines was part of his bargain with whomever he purchased the smartphone from.”

NIED

“Google does not owe a general duty to the public bases [I think this was supposed to be “based”] on its operation of the Play Store.” The court also expresses concern about causation.

Implications

The court doesn’t cite other cases applying Section 230 to protect app stores, such as Coffee v. Google (discussed, but not re. 230, and see the more recent ruling at 2022 WL 94986), Free Kick Master v. Apple, and Evans v. HP. See also Coronavirus Reporter v. Apple (rejecting an antitrust claim from a banned app) and my termination/removals article with Jess Miers.

Making sure you didn’t miss the lawsuit’s point: The plaintiffs in this case sought to force an app store to blocklist an app because some app users misbehaved. That cannot be the right policy because the app store can’t control the behavior of third-party app users, so this would be a basis for removing all UGC apps. At the same time, I’m OK if Google voluntarily chooses to ban Telegram in the app store. As the app store operator, they have the freedom to decide what apps are fit for its audience. The lawsuit essentially sought to strip that choice from the app store vendors.

This lawsuit is another example of legal efforts to punish services for making no-win content moderation decisions. Google cannot avoid alienating some portions of its litigious audience with its decision about Telegram. Leaving up the app invites complaints like this one. Removing an app like Telegram would spark lawsuits the conservatives who claim that Big Tech is biased against them. In this respect, I’m reminded of how Twitter got sued both for leaving Trump’s account up and later for removing it. So that do we as a society want Google to do? If there’s no social consensus, then some portions of the community will always have a reason to criticize/sue app stores for every content moderation decision they make.

Case Citation: Ginsberg v. Google Inc., 2022 WL 504166 (N.D. Cal. Feb. 18, 2022)