Those suggestions were not enough to erode its immunity as
simply a publisher of content created by third parties, the Court
said.
The US Communications and Decency Act (CDA) contains, in Section
230, an immunity for internet publishers in relation to content
published via them by third party information providers.
The adverts that appear beside search engine results in Google –
which are the result of companies paying for ads to appear beside
certain searched-for terms – have traditionally fallen within the
Section 230 exemption.
Internet user Jenna Goddard sued Google, though, claiming that
the way its keywords advertising system worked gave it liability
for fraudulent web-based subscription services.
Goddard argued that Google's processes contributes to material's
illegality and even requires the inclusion of illegal content in
adverts. She said that Google's 'keyword tool', which suggests
terms that adverts might be associated with, involves Google in the
fraudulent ads and is therefore not a neutral tool deserving of
Section 230 immunity.
Goddard said that when advertisers seek to associate their ads
with the word 'ringtone' Google's tool suggests they associate it
with 'free ringtone'. She said that 'free ringtone' is a term used
by fraudulent charging services, and that Google's web search
function disproportionately directs people to search for 'free
ringtone' as a term.
This, she argued, made Google more than a conduit for third
party information and gave it some liability for the fraudulent
activity of service operators whose ads were displayed alongside
search results for the term 'free ringtone'.
The US District Court for the Northern District of California
disagreed. "Even assuming that Google is aware of fraud in the
mobile subscription service industry and yet disproportionately
suggests the term 'free ringtone' in response to an advertiser’s
entry of the term 'ringtone', [Goddard's] argument that the Keyword
Tool 'materially contributes' to the alleged illegality does not
establish developer liability," said Judge Jeremy Fogel in his
ruling.
"Even if a particular tool 'facilitate[s] 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,'" he said, quoting an earlier judgment in a case
involving Roommates.com.
"The provision of neutral tools generally will not affect the
availability of CDA immunity 'even if a service provider knows that
third parties are using such tools to create illegal content'," he
said, quoting one of his own rulings in an earlier stage of this
case. "As a result, 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."
"Substantially greater involvement is required, such as the
situation in which the website 'elicits the allegedly illegal
content and makes aggressive use of it in conducting its
business'," he said, quoting the Roommates.com judgment again.
"Google’s Keyword Tool is a neutral tool. It does nothing more
than provide options that advertisers may adopt or reject at their
discretion," he ruled.
Judge Fogel also dismissed Goddard's claims that the system
'required' advertisers to accept Google's suggested phrases.
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