Friday, February 23, 2018

Google Immune

Google is not liable for content posted by a user per a decision issued today by the United States Court of Appeals fo.r the District of Columbia Circuit

Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google’s motion to dismiss, concluding that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunized Google from liability for the publication of third party content. We affirm.

Precedent involves Larry Klayman

In Klayman, we held that “a website does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online.” Id. at 1358. We noted that, although the Facebook website’s “Statement of Rights and Responsibilities” might create an independent cause of action for breach of contract, the statement did not change the fact that the plaintiff was seeking to hold Facebook liable as a “publisher” of the objectionable material. Id. at 1359. Accordingly, we affirmed the district court’s dismissal of the plaintiff’s claims pursuant to section 230 of the CDA. Id.; see also Zeran, 129 F.3d at 331 (rejecting argument that defendant was “distributor” rather than “publisher” under CDA because it acquired “knowledge of the defamatory statements’ existence”).

This case is controlled by the three-part test in Klayman. First, as many other courts have found, Google qualifies as an “interactive computer service” provider because it “provides or enables computer access by multiple users to a computer  server.” 47 U.S.C. § 230(f)(2); see, e.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d 242 F. App’x 833 (3d Cir. 2007) (“[T]here is no doubt that Google qualifies as an ‘interactive computer service’ and not an ‘information content provider.’”). Indeed, Bennett concedes that fact. Appellant’s Br. 6 (“Google provides interactive computer services, including websites and social media platforms.”). Second, Bennett alleges that only Pierson—and not Google—created the offensive content on the blog. Compl. ¶¶ 11-12.

Third, Bennett seeks to hold Google liable as a publisher of the content. Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Id. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.” Id.

In sum, the CDA “allows [computer service providers] to establish standards of decency without risking liability for doing so.” Green v. Am. Online, Inc., 318 F.3d 465, 472 (3d Cir. 2003). Although “other types of publishing activities might shade into creating or developing content,” the decision to print or retract is fundamentally a publishing decision for which the CDA provides explicit immunity. 

Circuit Judge Henderson authored the opinion. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/02/google-is-not-liable-for-content-posted.html

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