Goddard v. Google, Inc.

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]

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]

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.

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]

• Eric Goldman, Google Not Liable for False Ads, Technology & Marketing Law Blog (Jul. 31, 2009).
• Eric Goldman, Lawsuit Over Google Ads for Mobile Services Dismissed Per 230, Technology & Marketing Law Blog (Dec. 22, 2008).
• Eric Goldman, Google Sued for Running Ads for "Fraudulent Mobile Subscription Services", Technology & Marketing Law Blog (Jun. 4, 2008).
• Greg Piper, Google's Keyword Suggestion Tool Covered by CDA, Judge Rules in Ad Suit, Standford Law School News Center (Aug. 4, 2009).