Last month, a Florida judge ruled on a landmark case against Google that will have a far-reaching impact on how SEO is conducted, and may ultimately give some guidance both to webmasters and to Google itself on how websites make it onto the Google index.
In June 2016, a Florida judge denied Google’s motion to dismiss a case that continues to have serious repercussions of how companies engage in SEO, and whether Google is allowed arbitrary decision-making authority of what goes into the index and what does not. The case went forward, and a ruling was issued on Feb. 8, 2017.
In that ruling, plaintiff e-ventures Worldwide LLC contended that Google’s decision to subjectively de-index hundreds of their websites based on an anonymous tip violated Google’s own guidelines. The court first rejected Google’s arguments in the search engine’s motion to dismiss. Google claimed they are protected both under the First Amendment, and also under the Communications Decency Act (CDA). Websites (including search engines) are not liable for content filtering decisions under the CDA, but those filtering decisions must be made “in good faith.” E-ventures claimed, and the court agreed, that Google lacked good faith in its decision, because it was not made based on editorial judgment or compliance with stated guidelines, but rather, based on an anonymous, unverified and potentially malicious tip.
The court’s denial of Google’s 2016 motion to dismiss was a rare move. There are hundreds of litigious webmasters with axes to grind against Google, seeking legal retaliation for when their sometimes thin and spammy content gets demoted or de-indexed, and those cases are almost always quickly dismissed. What’s different about the e-ventures case is the long-term repercussions of web publishing and SEO in general — and questions about the degree to which Google can act arbitrary in making de-indexing decisions. More to the point, anonymous tipsters with an axe to grind will no longer hold sway over Google’s indexing practices, and the court’s judgment — although the February 2017 decision ultimately favored Google — will appropriately hold Google to a higher standard.
Summary judgment granted, but Google still loses out on CDA argument.
When the court granted Google’s motion for summary judgment, the ruling was not 100 percent in Google’s favor. Google claimed it was protected both under the First Amendment and under the CDA. The court agreed only that Google enjoyed First Amendment protections but that the CDA did not apply.
CDA subsections (c)(1) states 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,” and (e)(3) says that no cause of action can be brought or liability imposed that is inconsistent with that action.
The ruling states, “According to Google, it is immune from liability under the CDA for any actions it took as a publisher, and deciding what content to block or remove from Google’s search engines is quintessentially a publisher action.” But, as noted by the judge, immunity is afforded only if the publisher, in this case Google, acts in good faith, which the court agreed they did not.
Taking the long view of CDA.
The CDA, part of the Telecommunications Act of 1996, was actually created as a response to internet pornography, and was passed to regulate indecency when it is made accessible to children. Nobody is arguing that e-ventures was a publisher of indecent materials; it was not. However, Google unsuccessfully took a much broader view of CDA, claiming that it applied to virtually anything it decided it didn’t like, by citing the CDA’s note that it grants immunity from liability for “any action taken in good faith to restrict access to or availability of material that the provider or users considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
While the statute was meant to protect children from porn, Google took the “otherwise objectionable” clause literally as a sort of catch-all to give them broad leeway in de-indexing any website without reason or explanation.
The judge’s ruling said that CDA does not immunize Google’s actions because Google did not act in good faith, stating:
“Under the facts of this case, CDA subsection (c)(1) does not immunize Google’s actions here. Subsection (c)(2) may provide that immunity, but that section only immunizes actions taken in good faith, and e-ventures has brought forward enough circumstantial evidence — including the fact that Google’s decision to remove all of e-ventures’ websites was made the day Google received a list of e-ventures’ customers from a ‘tipster’ — to raise a genuine issue of fact as to Google’s good faith. Google’s Motion on this point is denied.” [emphasis mine]
“Although the judge did rule in Google’s favor on the First Amendment argument, we applaud the court’s ruling on the CDA claim,” said Jeev Trika, CEO of e-ventures Worldwide. “The ruling reinforces the purpose of the CDA, preventing Google and others from using it as a catch-all to justify arbitrary and unfair actions. Furthermore, Google has been exposed for its biased conduct. The judge clearly indicates that e-ventures has brought forward enough circumstantial evidence to raise a genuine issue of fact as to Google’s good faith.”
What the ruling means to webmasters.
Google has a set of guidelines, which as a publisher, they are entitled to have. According to the court, Google enjoys First Amendment privileges in what it includes and does not include in its index, much the same as a newspaper publisher has the right to decide what to publish on the front page, what to bury deeper in the paper and what not to publish at all.
But just as newspapers show editorial restraint in vetting articles and verifying their veracity, so too now must Google. When the Washington Post first broke the Watergate story, they did not publish the accusations simply because an anonymous tipster — in that case, the notorious “Deep Throat” — made a claim. Rather, the editors, as was their policy, insisted on some validation. Only when the claim could be validated did the newspaper publish the story.
Google can and should be held to the same high standard. Web publishing is a highly competitive business, and it is not unusual for competitors to attempt to win a higher position through subterfuge and sabotage of competing sites, and through black hat tactics like anonymous tips sent to Google. Now as a result of the court’s ruling, Google must be held to the good faith clause of CDA. For a company with an ex-mantra of “Do No Evil,” Google got caught with their pants down and may have temporarily even escaped the hands of the courts, but this certainly doesn’t fare well in the eyes of public opinion.