Google is the big kahuna for online businesses seeking the lucrative benefits of high rankings through search engine optimization. After all, some 70 percent of all queries on search engines run through Google. Ah, but what if Google removes your website from the search listings? Can you sue the company for taking such action?
White Hat, Black Hat…So Many Hats
Google will add just about any website to the database it uses to return search results for queries from individuals. However, the company then applies a set of partially-public guidelines to evaluate where a site should rank in the search results. If a website blatantly violates the guidelines, Google may decide to issue the severe penalty of removing the site completely from the rankings, which can be a fatal blow to many businesses.
This scenario usually arises when a business applies “black hat” techniques to generate rankings. Such methods range from pursuing link schemes designed to rig the system to the use of spam content or content stolen from other sites. Google has caught companies as large as JCPenny and BMW with their metaphorical hands in the cookie jar in this regard.
Google’s Action Legal?
The rather obvious question is, does Google have the legal authority to carry out such removals? Courts have typically ruled for the company, often citing Section 230 of the Communications Decency Act as the legal authority that applies.
The Communications Decency Act of 1996 is an odd beast. The Act was originally passed primarily to combat online porn. Of course, there is this little legal hurdle known as the right to free speech that often bars federal and state governments from instituting such laws. In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court ruled the First Amendment applied to online porn and struck down the majority of the “CDA.”
Note the emphasis on the word “majority.”
The Supreme Court did not strike the entire law. A few sections survived of which Section 230 is one. This odd quirk is incredibly important because Section 230 forms the backbone of much of the legal foundation of the Internet. The section reads as follows:
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
To be sued for defamation, the most common legal claim with third-party sites in the search results, the suing party must be able to show the offending content was published or spoken by the defendant. Since Section 230 states an interactive computer service [Google] cannot be either of these classifications, any defamation lawsuit dies on the vine.
However, what happens if Google removes a site on its own? Historically, editorial decisions are protected by the First Amendment. In a case involving the Baidu search engine, for example, a federal judge held:
“…there is a strong argument to be made that the First Amendment fully immunizes search-engine results from most if not all, kinds of civil liability and government regulation….The central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later).
In short, any search engine has the right to organize its database as it sees fit. The strength of this right is evidenced by the fact the court rules as such in the Baidu case even though the contention was Baidu was excluding content that was pro-Democracy.
When combined, Section 230 and the First Amendment appear to provide Google and other search engines with plenty of legal authority to remove websites from their indexes for just about any reason. A recent case is raising a fuss by going against this basic understanding.
E-ventures Worldwide, LLC v. Google, Inc., is new and compelling litigation on this topic. Plaintiff is suing Google for removing hundreds of its sites from the Google ranking database. The sites were removed, according to Google, because they were all “spammy” and violated the Google guidelines. Google consider the situation to be so egregious that it also is refusing to accept any new sites submitted by e-ventures Worldwide.
E-ventures is suing Google for the following:
- Violation of the Florida Deceptive and Unfair Trade Practices Act,
- Defamation, and
- Tortious Interference with Contract.
Google filed a Motion to Dismiss at the outset of the lawsuit, as one would expect. As one would not expect, the court found for the Plaintiff and is allowing the lawsuit to proceed. Many commentators suggest this is a precedent other parties can use to sue Google over search engine penalties and de-indexing events.
Such an assumption is misplaced.
There is a strong public policy of allowing a suing party “their day in court” in the United States. While the Court should have dismissed this lawsuit out of hand pursuant particularly to the First Amendment defense, the judge creates a rather twisted line of reasoning for allowing the lawsuit to proceed. But that is all the court is allowing – the right for the lawsuit to proceed.
Google has not been found liable.
The likely outcome of this case is the lawsuit will proceed through the discovery phase of the litigation [depositions, document exchanges, etc.]. Google will then file a Motion for Summary Judgment sometime around the end of 2016, and the court will likely grant the motion. If the judge rejects the ruling and allows the case to go to trial, an appellate court will eventually take the matter up and squash the claims of the Plaintiff.
In short, much ado about nothing.
For better or worse, search engines have a right to edit their search results. The e-ventures case will not alter this right.
Richard A. Chapo, Esq.