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Section 230 Immunity for Publishing Scam Ads

Posted by James Juo | Jun 12, 2023 | 0 Comments

Section 230 of the Communications Decency Act (the “CDA”), 47 U.S.C. § 230, states that “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

Subject to certain exceptions (see § 230(e)), an Internet provider is shielded from civil liability when: (1) it is a “provider or user of an interactive computer service,” as defined by § 230(f)(2); (2) the plaintiff's claims treat the defendant as the publisher or speaker of information, see § 230(c)(1); and (3) that information is “provided by” an “information content provider” other than the defendant interactive computer service, see § 230(f)(3). Force v. Facebook, Inc., 934 F.3d 53, 64 (2d Cir. 2019). Section 230 is construed broadly in favor of immunity. Id.

Search engines such as Google and Bing fall within the definition of a provider of interactive computer services. FTC v. LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016); Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1268 (D.C. Cir. 2019) (holding that the definition of “interactive computer service” applies to Google).

As for being treated as a publisher or speaker of information, Section 230 “specifically proscribes liability” for “decisions relating to the monitoring, screening, and deletion of content from [a platform] — actions quintessentially related to a publisher's role.” Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003).

Section 230 bars any claim that “can be boiled down to the failure of an interactive computer service to edit or block user-generated content that it believes was tendered for posting online, as that is the very activity Congress sought to immunize by passing the section.” Fair Hous. Council of San Fernando Valley v., LLC, 521 F.3d 1157, 1172 n.32 (9th Cir. 2008).

But Section 230 protection does not apply if the website operator goes beyond merely publishing the content and is instead “responsible, in whole or in part, for creating or developing” it., 521 F.3d at 1162; see 47 U.S.C. § 230(f)(3).

Scam Ads on Google

In Ynfante v. Google LLC, No. 22-cv-6831, 2023 WL 3791652 (S.D.N.Y. Jun. 1, 2023), the plaintiff sued Google for false advertising and negligence in connection with a scam “phishing” advertisement posted on Google's online advertising platform known as Google Ads, where he was lured by a supposed eBay customer service advertisement to disclose his eBay account information.

Mr. Ynfante alleged that Google had approved the scam ad without properly vetting and verifying its authenticity and legitimacy in accordance with Google's advertising policies.

The Court dismissed the claims without prejudice, noting that Section 230 immunity cannot be avoided through artful pleading that Google had a duty to “vet and verify” against scam ads. See, e.g., Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016) (rejecting the plaintiff's attempt to hold Yelp liable for “causing a [negative] review from another site to appear on its page” and for “causing the statements to appear as a promotion on [a] search engine” as “creative pleading” designed to circumvent Section 230); Goddard v. Google, Inc., No. 08-cv-2738, 2008 WL 5245490, at *4 (N.D. Cal. Dec. 17, 2008) (finding that the plaintiff's attempt to hold Google liable for its “acceptance of tainted funds from fraudulent mobile content providers” was an “impermissible recharacterization” of a claim fundamentally based on Google's publishing of third-party content).

With respect to whether Google was responsible in part for developing the scam ad, a defendant in the Second Circuit would need to have “directly and materially contributed to what made the [third-party] content itself unlawful.” Force, 934 F.3d at 68.

This test “draws the line at the crucial distinction between, on the one hand, taking actions to display actionable content and, on the other hand, responsibility for what makes the displayed content itself illegal or actionable.” Id. Google's alleged actions did not directly and materially contribute to the content of the scam advertisement nor to its unlawfulness. Features such as the official “Ad” label are instead “neutral tools for navigating websites” that “merely provide a framework that could be utilized [by others] for proper or improper purposes.” See, 521 F.3d at 1172, 1174 n.37. In other words, Google did nothing to make the content of the advertisement itself more unlawful. Rather, the defendant's alleged actions merely served to distinguish the advertisement as an advertisement.

Thus, the Court determined that the plaintiff's claims were barred by Section 230 of the CDA.

The attorneys at Thomas P. Howard, LLC litigate cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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