TR Daily In Victory for Search Engines, Court Warns CDA Safe Harbor Has Limits
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Friday, June 7, 2019

In Victory for Search Engines, Court Warns CDA Safe Harbor Has Limits

The U.S. Court of Appeals for the District of Columbia ruled today that Google LLC and other search engine operators enjoy immunity under section 230 of the Communications Decency Act from a lawsuit by 14 locksmith companies seeking to hold them liable for publishing false location information for “fake locksmiths.”

However, the court warned that there are limits to the 1996 statute’s safe harbor for publishing third-party information online — which has enabled Internet services and platforms as varied as Facebook, Inc., Twitter, Inc., e-mail services, web-hosting services, and file-sharing sites to operate relatively free of concerns about libel, copyright, and other content-related liability.

“We close by noting that, although we find § 230 immunity warranted in this case, that immunity is not limitless. In this vein, we reject the defendants’ remarkable suggestion at oral argument that they would enjoy immunity even if they did in fact entirely fabricate locksmith addresses. … That assertion is plainly inconsistent with the scope of the immunity that Congress has conferred. If the defendants were to fabricate addresses, those addresses would not be ‘information provided by another information content provider.’ 47 U.S.C. § 230(c)(1). And the defendants would not be entitled to immunity,” Chief Judge Merrick Garland wrote for the three-judge panel in “Marshall’s Locksmith Service, Inc., et al. v. Google LLC et al.” (case 18-7018).

Chief Judge Garland was joined in the opinion released today by Circuit Judge Patricia A. Millet and Senior Circuit Judge Harry T. Edwards.

The U.S. District Court for the District of Columbia had dismissed the amended complaint of the locksmith companies as barred by the safe-harbor in section 230 of the CDA, in which the locksmith companies contended that “Google, Microsoft, and Yahoo! have conspired to ‘flood the market’ of online search results with information about so-called ‘scam’ locksmiths, in order to extract additional advertising revenue.”

In today’s opinion, the appeals court held that the map-format presentation of street addresses taken from the scam locksmiths’ websites does not equate to development or creation of content, which would disqualify the search engines for immunity under section 230 of the CDA. It also held section 230 provides safe harbor for “the translation of somewhat less-exact location descriptions” such as the creation of a map based on “a scam locksmith’s website that says the locksmith ‘provides service in the Washington, D.C. metropolitan area’ and ‘lists a phone number with a “202” area code.’”

“Here, the defendants use automated algorithms to convert third-party indicia of location into pictorial form. … Those algorithms are ‘neutral means’ that do not distinguish between legitimate and scam locksmiths in the translation process,” Chief Judge Garland wrote.

As for allegations by the plaintiffs that the search engines “go further” in creating “original content,” the court held that these allegations either “refer to the map pinpoints that the search engines generate in neutral fashion based on third-party information like area codes, and [which] we have already concluded that the pinpoints are covered by § 230 immunity”; are forfeited because they were not discussed in their appellate briefs; or were not raised in their amended complaint to the district court. —Lynn Stanton, [email protected]

MainStory: FederalNews Courts InternetIoT

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