Goddard v. Google, Inc.

Last updated
Goddard v. Google, Inc.
US DC NorCal.svg
Court United States District Court for the Northern District of California
DecidedJuly 30, 2009
Citation(s)640 F. Supp. 2d 1193
Case history
Prior action(s)2008 U.S. Dist. LEXIS 101890
Holding
The court dismissed Goddard's complaint without leave to amend, holding that Google was immune from liability for suggesting fraudulent websites via its Keyword Tool pursuant to Section 230(c) of the Communications Decency Act.
Court membership
Judge(s) sitting Jeremy Fogel
Keywords
Section 230 of the Communications Decency Act

Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. Jul. 30, 2009), is a case in which Jenna Goddard ("Plaintiff") alleged that she and a class of similarly situated individuals were harmed by Google ("Defendant") as a result of clicking allegedly fraudulent web-based advertisements for mobile subscription services ("MSSPs"). The United States District Court for the Northern District of California held that the action was barred by Section 230 of the Communications Decency Act ("CDA") and dismissed the complaint without leave to amend.

Contents

Facts and procedural history

While on Google's search results page, Goddard clicked on advertisements that led her to allegedly fraudulent websites. She then entered her cell phone number on the allegedly fraudulent sites to download ringtones, an action for which she was unknowingly charged. Goddard filed a lawsuit against Google on April 13, 2008, claiming that she was an intended third-party beneficiary of Google's AdWords Content Policy that Google failed to adequately enforce by aiding and abetting the fraud sites. [1] Google asserted that each of Goddard's claims was barred by the CDA, which prevents a website from being treated as the "publisher or speaker" of third-party content. The court rejected Goddard's "artful" pleading and dismissed her complaint with leave to amend in a decision issued on December 17, 2008. [1]

In her amended complaint, Goddard lleged that "Google's involvement in creating the allegedly fraudulent advertisements was so pervasive that the company controlled much of the underlying commercial activity engaged in by the third-party advertisers." [2] She further asserted that Google "not only encourages illegal conduct, but collaborates in the development of the illegal content and, effectively, requires its advertiser customers to engage in it." [2]

Section 230(c) of the CDA

Protection for "good samaritan" blocking and screening of offensive material [3]

(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.

Decision

The court relied on Carafano v. Metrosplash.com , which found that the CDA provides "robust" immunity for internet service providers and websites where courts have adopted "a relatively expansive definition of 'interactive computer service' and a relatively restrictive definition of 'information content provider.'" Therefore, a website operator is not liable as an "information content provider" merely by augmenting the content of online material generally. [2] Rather, the website must contribute "materially ... to its alleged unlawfulness." [2] A website does not so contribute when it merely provides third parties with neutral tools to create web content, even if the website has knowledge that third parties are using such tools to create illegal content. [2]

Developer liability

Goddard alleged that Google's Keyword Tool is not a "neutral tool" because when a potential advertiser enters the word "ringtone" into Google's Keyword Tool, the tool suggests the word "free." According to Goddard this suggestion is "neither innocuous nor neutral" because Google is aware of the "mobile content industry's unauthorized charge problems." [2] The court rejected Goddard's argument that the Keyword Tool materially contributes to the alleged illegality and thereby establishes developer liability. The court cited Carafano v. Metrosplash.com , where it ruled that "if a particular tool 'facilitates the expression of information,' it generally will be considered 'neutral' so long as users ultimately determine what content to post, such that the tool merely provides 'a framework that could be utilized for proper or improper purposes.'" [2] Thus, like the menus in Carafano, Google's Keyword Tool is a neutral tool that merely provides options to advertisers. Goddard further alleged that Google effectively requires advertisers to engage in illegal conduct. The court held that Goddard's use of the word "requires" is inconsistent with the allegation that Google "suggests" words to the advertisers. [2] The court referred to the Ninth Circuit ruling in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC [4] where CDA immunity was denied because the website forced subscribers to disclose protected characteristics and discriminatory preferences as "a condition of using its services." The court thereby concluded that Goddard's reasoning failed to disclose a "requirement" of any kind or suggest the type of "direct and palpable" involvement that otherwise is required to obviate CDA immunity. [2]

Contract claims in light of Barnes v. Yahoo!

Goddard alleged that she and similarly situated individuals were intended third-party beneficiaries of Google's Advertising Terms [5] which include a Content Policy requiring that mobile subscription service advertisers display certain information about their products, including whether downloading the products will result in charges to the consumer. In Barnes v. Yahoo!, Inc. [6] the court addressed the immunity of Yahoo! against Barnes' claim that it was either negligent in undertaking to remove, or breached an oral contract to remove, offensive and unauthorized content posted about the plaintiff by her ex-boyfriend on one of Yahoo!'s public profile pages. The court found that claims alleging that a website negligently undertook to remove harmful content are barred by the CDA. However, the court noted that certain promissory conduct by a defendant may remove it from the protections of the CDA even where the alleged promise was to remove or screen third-party content. Barnes implies that when a party engages in conduct giving rise to an independent and enforceable contractual obligation, that party may be liable not as a publisher or speaker of third-party content but instead under contract law. [6] Here, however, there was no allegation that Google ever promised Goddard or anyone else that it would enforce its Content Policy. Also, even if Google had promised to enforce its Content Policy, Goddard would not be a third-party beneficiary of that promise: Google would be the promisor and the allegedly fraudulent MSSP would be a promisee. [2] Thus, the court also rejected Goddard's contract claim.

Holding

Federal Judge Jeremy Fogel reasoned that "a plaintiff may not establish developer liability merely by alleging that the operator of a website should have known that the availability of certain tools might facilitate the posting of improper content.” [7] The court held that Goddard's claims treat Google as the publisher or speaker of third-party content, but she failed to substantiate the "labels and conclusions" by which she attempted to escape the scope of the CDA. [2] Further, the court emphasized that the CDA "must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles." [2] For these reasons, the court dismissed Goddard's complaint without leave to amend. [2]

Related Research Articles

The Communications Decency Act of 1996 (CDA) was the United States Congress's first notable attempt to regulate pornographic material on the Internet. In the 1997 landmark case Reno v. ACLU, the United States Supreme Court unanimously struck the act's anti-indecency provisions.

<i>Carafano v. Metrosplash.com, Inc.</i>

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, is an American legal case dealing with the protection provided an internet service provider under the Communications Decency Act (CDA) United States Code Title 47 section 230(c)(1). It is also known as the Star Trek actress case as the plaintiff, Chase Masterson – whose legal name is Christianne Carafano – is well known for having appeared on Star Trek: Deep Space Nine. The case demonstrated that the use of an online form with some multiple choice selections does not override the protections against liability for the actions of users or anonymous members of a Web-based service.

Online service provider law is a summary and case law tracking page for laws, legal decisions and issues relating to online service providers (OSPs), like the Wikipedia and Internet service providers, from the viewpoint of an OSP considering its liability and customer service issues. See Cyber law for broader coverage of the law of cyberspace.

<i>Cubby, Inc. v. CompuServe Inc.</i>

Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 was a 1991 court decision in the United States District Court for the Southern District of New York which held that Internet service providers were subject to traditional defamation law for their hosted content. The case resolved a claim of libel against CompuServe, an Internet service provider that hosted allegedly defamatory content in one of its forums. The case established a precedent for Internet service provider liability by applying defamation law, originally intended for hard copies of written works, to the Internet medium. The court held that although CompuServe did host defamatory content on its forums, CompuServe was merely a distributor, rather than a publisher, of the content. As a distributor, CompuServe could only be held liable for defamation if it knew, or had reason to know, of the defamatory nature of the content. As CompuServe had made no effort to review the large volume of content on its forums, it could not be held liable for the defamatory content.

<span class="mw-page-title-main">Google Ads</span> Online advertising platform owned by Google

Google Ads is an online advertising platform developed by Google, where advertisers bid to display brief advertisements, service offerings, product listings, or videos to web users. It can place ads both in the results of search engines like Google Search and on non-search websites, mobile apps, and videos. Services are offered under a pay-per-click (PPC) pricing model.

Click fraud is a type of fraud that occurs on the Internet in pay-per-click (PPC) online advertising. In this type of advertising, the owners of websites that post the ads are paid based on how many site visitors click on the ads. Fraud occurs when a person, automated script, computer program or an auto clicker imitates a legitimate user of a web browser, clicking on such an ad without having an actual interest in the target of the ad's link in order to increase revenue. Click fraud is the subject of some controversy and increasing litigation due to the advertising networks being a key beneficiary of the fraud.

Pay-per-click (PPC) is an internet advertising model used to drive traffic to websites, in which an advertiser pays a publisher when the ad is clicked.

<i>Zeran v. America Online, Inc.</i> 1997 United States court case

Zeran v. America Online, Inc., 129 F.3d 327, cert. denied, 524 U.S. 937 (1998), is a case in which the United States Court of Appeals for the Fourth Circuit determined the immunity of Internet service providers for wrongs committed by their users under Section 230 of the Communications Decency Act (CDA). Section 230(c)(1) of the CDA provides that "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."

Search engine marketing (SEM) is a form of Internet marketing that involves the promotion of websites by increasing their visibility in search engine results pages (SERPs) primarily through paid advertising. SEM may incorporate search engine optimization (SEO), which adjusts or rewrites website content and site architecture to achieve a higher ranking in search engine results pages to enhance pay per click (PPC) listings and increase the Call to action (CTA) on the website.

Contextual advertising is a form of targeted advertising for advertisements appearing on websites or other media, such as content displayed in mobile browsers. In context targeting, advertising media are controlled on the basis of the content of a website using linguistic elements. The advertisements themselves are selected and served by automated systems based on the context of what a user is looking at.

<span class="mw-page-title-main">Online Copyright Infringement Liability Limitation Act</span> 1998 U.S. federal law

The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional 'safe harbor' for online service providers (OSP) by shielding them for their own acts of direct copyright infringement as well as shielding them from potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

<span class="mw-page-title-main">Section 230</span> US federal law on Internet sites liability

Section 230 is a section of Title 47 of the United States Code that was enacted as part of the United States Communications Decency Act and generally provides immunity for website platforms with respect to third-party content. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by third-party users:

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.

<i>Doe v. MySpace, Inc.</i>

Doe v. MySpace, Inc., 528 F.3d 413 (2008), is a 2008 Fifth Circuit Court of Appeals ruling that MySpace was immune under Section 230 of the Communications Decency Act of 1996 from liability for a sexual assault of a minor that arose from posts on the MySpace platform.

<i>Perfect 10, Inc. v. CCBill, LLC</i>

Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, is a U.S. court case between a publisher of an adult entertainment magazine and the webhosting, connectivity, and payment service companies. The plaintiff Perfect 10 asserted that defendants CCBill and CWIE violated copyright, trademark, and state law violation of right of publicity laws, unfair competition, false and misleading advertising by providing services to websites that posted images stolen from Perfect 10's magazine and website. Defendants sought to invoke statutory safe harbor exemptions from copyright infringement liability under the Digital Millennium Copyright Act, 17 U.S.C. § 512, and from liability for state law unfair competition, false advertising claims and right of publicity based on Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1).

Thomas Dart, Sheriff of Cook County v. Craigslist, Inc., 665 F. Supp. 2d 961, is a decision by the United States District Court for the Northern District of Illinois in which the court held that Craigslist, as an Internet service provider, was immune from wrongs committed by their users under Section 230 of the Communications Decency Act (CDA). Sheriff Thomas Dart had sought to hold Craigslist responsible for allegedly illegal content posted by users in Craigslist's erotic services section, but Section 230(c)(1) of the CDA provides that "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."

In Milgram v. Orbitz Worldwide, LLC, the New Jersey Superior Court held that online ticket resellers qualified for immunity under Section 230 of the Communications Decency Act (CDA), and that such immunity preempted a state law consumer fraud statute. The opinion clarified the court's test for determining whether a defendant is acting as a publisher, the applicability of the CDA to e-commerce sites, and the extent of control that an online intermediary may exercise over user content without becoming an "information content provider" under the CDA. The opinion was hailed by one observer as a "rare defeat for a consumer protection agency" and the "biggest defense win of the year" in CDA § 230 litigation.

<i>Barnes v. Yahoo!, Inc.</i>

Barnes v. Yahoo!, Inc., 570 F.3d 1096, is a United States Court of Appeals for the Ninth Circuit case in which the Ninth Circuit held that Section 230 of the Communications Decency Act (CDA) rules that Yahoo!, Inc., as an Internet service provider cannot be held responsible for failure to remove objectionable content posted to their website by a third party. Plaintiff Cecilia Barnes made claims arising out of Defendant Yahoo!, Inc.'s alleged failure to honor promises to remove offensive content about the plaintiff posted by a third party. The content consisted of a personal profile with nude photos of the Plaintiff and her contact information. The United States District Court for the District of Oregon had dismissed Barnes' complaint.

<i>Fair Housing Council of San Fernando Valley v. Roommates.com, LLC</i>

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, is a case in which the United States Court of Appeals for the Ninth Circuit, sitting en banc, held that immunity under Section 230 of the Communications Decency Act (CDA) did not apply to an interactive online operator whose questionnaire violated the Fair Housing Act. However, the court found that Roommates.com was immune under Section 230 of the CDA for the “additional comments” portion of the website. This case was the first to place a limit on the broad immunity that Section 230(c) gives to service providers that has been established under Zeran v. AOL (1997).

<i>Swift v. Zynga</i>

Swift v. Zynga is an ongoing class action lawsuit filed in 2009, based on allegedly deceptive ads that ran in Zynga games on Facebook. A motion by Zynga to dismiss the case was denied by the United States District Court for the Northern District of California in November 2010.

Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), also known as Google v. Louis Vuitton was a landmark decision in which the European Court of Justice (ECJ) held that search engines operators such as Google do not themselves infringe trademark rights if they allow advertisers to use a competitor's trademark as a keyword.

References

  1. 1 2 Goddard v. Google, Inc., No. 08-2738, 2008 WL 5245490, 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. Dec. 17, 2008).
  2. 1 2 3 4 5 6 7 8 9 10 11 12 13 Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. Jul. 30, 2009).
  3. ↑ 47 U.S.C.   § 230. Protection for private blocking and screening of offensive material.
  4. ↑ Fair Housing Counsel of San Fernando Valley v. Roommates.com Inc., 521 F.3d 1157 (9th Cir. 2008) (en banc).
  5. ↑ Google's Advertising Terms .
  6. 1 2 Barnes v. Yahoo! Inc. , No. 05-36189 (9th Cir. Jun. 22, 2009).
  7. ↑ "Goddard V. Google, Inc". June 30, 2009.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.