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This story covers a ruling by lecturer and U.S. District Court Judge Jeremy Fogel:
As long as Google doesn't force advertisers to buy certain keyword phrases as a condition of advertising, the search company can't be held liable in lawsuits resulting from those keywords, the U.S. District Court in San Jose ruled. Judge Jeremy Fogel distinguished his holding from that of the 9th U.S. Circuit Court of Appeals in a decision faulting Roommates.com for requiring prospective users to identify themselves in ways that violate fair-housing laws (WID May 16/07 p1). It's particularly good news for Google, whose keyword-suggestion tool was recently frowned upon by the 2nd Circuit in a trademark-infringement suit (WID April 6 p3).
The purported class-action lawsuit filed by Jenna Goddard was previously shot down by Fogel, who derided Goddard's claims as "artful pleading." But Fogel allowed Goddard to amend the suit, with "express instructions" that she show Google's involvement in "creating or developing" the deceptive ads for "free ringtones" at issue, to get around the Section 230 immunity provisions in the Communications Decency Act. Goddard's amended suit, claiming Google's involvement was "so pervasive" that the company controlled "much of the underlying commercial activity" by advertisers, is simply "labels and conclusions" of the sort banned by the Supreme Court's Twombly ruling, Fogel said. "Plaintiff has not come close" to substantiating her claims, "by which she attempts to evade the reach of the CDA."
It's irrelevant whether Google knew the ringtone industry is plagued by "unauthorized charge problems," enabled by advertisements for "free ringtones" -- the keyword suggested by Google to a ringtone provider, Fogel said. The 9th Circuit has already upheld as a CDA-immune "neutral tool" an online questionnaire that featured multiple-choice questions, some answers of which could help in creating "libelous profiles." Fogel said "substantially greater involvement is required" by a developer to incur liability than simply knowing its tools are being used to create "improper content" -- namely, making "aggressive use" of the content requested from a user. Google's keyword tool is indeed neutral, and the company's policy expressly prohibits advertisers from using keywords in a way that violates applicable law, Fogel said. The Roommates.com ruling "turned entirely on the website's decision to force subscribers to divulge" information that violated federal and California law.
Ringtone advertisers weren't forced to accept the deceptive keywords suggested by Google simply because "free ringtones" alone bring in "substantial revenue-producing Internet traffic," Fogel said. Goddard had said the advertisers faced a "Hobson's choice" of either accepting Google's suggestion or drawing few clicks on their ads. That doesn't count as "direct and palpable involvement" in violation of the CDA, Fogel said.
Fogel distinguished the case from the 9th Circuit's ruling in Barnes v. Yahoo, which let proceed a lawsuit against Yahoo for not following through on an employee's promise to remove an unauthorized profile from a Yahoo page (WID May 12 p3). There's no evidence Google became a "counter-party to a contract" as alleged in Barnes, Fogel said. Google's advertising terms and content policy don't include "any promise by Google to enforce its terms of use or otherwise to remove noncompliant advertisements," so Goddard can't claim a breach of contract. Even if Google had done so, Goddard wouldn't be a "third-party beneficiary" of the agreement, he said.
Goddard's theory of Google's liability at best rests on "enhancement by implication or development by inference," Fogel said. He denied Goddard another chance to amend the complaint, saying she ignored the framework set up by the 9th Circuit in the Roommates.com decision and further amendment would be "futile." The 9th Circuit also implicitly recognized a form of "prejudice" by not quickly dismissing claims against defendants that are barred by the CDA, which otherwise would subject Web sites to "costly and protracted legal battles," Fogel said.