IP Law Daily, TECHNOLOGY/INTERNET—S.D.N.Y.: Section 230 of the CDA shields Google for liability for phishing ad at top of search results, (Jun 7, 2023)

By Seth Abrams, J.D., M.A.

Google was merely the publisher and not the creator of the false information.

The federal district court in New York City dismissed without prejudice claims for false advertising and negligence brought against Google LLC by plaintiff, Robyn A. Ynfante. The court held that: (1) defendant was shielded from liability from plaintiff’s claims because of Section 230 of the Communications Decency Act (“CDA”) and thus the claims should be dismissed; and (2) the motion to dismiss should be granted without prejudice to permit plaintiff the opportunity, if possible, to show that Google “directly and materially” contributed to the creation of the alleged scam advertisement (Ynfante v. Google LLC, June 1, 2023, Koeltl, J.).

In October 2021, Ynfante allegedly searched Google for “ebay customer service number” and received search results, along with approved advertisements. At the top of the page was an advertisement for a fake eBay customer service number that served to “phish” for customer information. Believing that he was calling the official eBay customer service line, Ynfante asserts that he gave his account information to the fake helpline, who then made purchases using his account and gained access to his home address and Social Security number. He brought claims against Google alleging false advertising under N.Y. Gen. Bus. Law § 350 and for negligence. Ynfante, who proceeded pro se, was seeking damages of $8,000,000 and injunctive relief.

Section 230 of the CDA. The court held that Ynfante’s claim was barred by Section 230 of the CDA. Section 230 of the CDA requires 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.” Thus, Section 230 applies when a defendant is a “provider . . . of an interactive computer service.” Second, Section 230 applies when the plaintiff’s claims treat the defendant as the “publisher” of the information in question. Third, the section applies when the information is “provided by another information content provider.”

Here, Google was a provider of an interactive computer service through the provision of a search engine. The Second Circuit has previously held that search engines fall within the definition of an “interactive computer service” in Section 230. Next, the “complaint treats Google as the publisher or speaker of information.” Ynfante’s claims are based on “the theory that Google did not block a third-party advertisement for publication on its search pages.” These required actions are squarely within the “exercise of a publisher’s role,” which brings it under the purview of Section 230. Finally, the alleged scam advertisement came from a different information provider from the defendant. The court held that Ynfante was trying to hold Google “liable for information provided by a party other than the defendant and published on Google’s platform.” This type of liability is foreclosed by Section 230.

The court also did not accept Ynfante’s arguments which sought to circumvent Section 230. The court found that Ynfante’s assertion that Google had a duty to “vet and verify the authenticity and legitimacy of potentially fraudulent advertisements” was without merit. This was again because of Section 230’s protection for Google as a publisher; these duties are squarely within a publisher’s responsibilities to “screen and monitor content,” for which companies in Google’s position as a publisher have been shielded from liability.

Google’s development of advertisement. Ynfante also contended that Google “helped to develop the scam advertisement by taking such action as placing it at the top of the search page, distinguishing it from other search results, and adding an official ‘Ad’ label in the top left corner of the advertisement.” The court pointed out that this allegation attempts to circumvent Section 230 which “does not apply if the website operator goes beyond merely publishing the content” and is “responsible, in whole or in part, for creating or developing it.” The court held that, under the “material contribution” test, which has been adopted by Second Circuit, it would have to be alleged that Google “directly and materially contributed to what made the content itself unlawful.” The actions alleged by Google did not do so—for example, the ad label was a “neutral tool[] for navigating websites.” The label merely distinguished the advertisement as such, and the court held that Google did nothing to increase the unlawfulness of the advertisement.

Dismissed without prejudice. Given that it was the first dismissal, that Ynfante was proceeding pro se, and that he had requested the opportunity to amend, the court granted leave to amend the complaint. The court stressed that in order to overcome Section 230, any amended complaint would need allegations “permitting an inference that Google directly and materially contributed to the creation or development of the scam advertisement.”

The case is No. 1:22-cv-06831-JGK.

Attorneys: Robyn A. Ynfante, pro se. Benjamin D. Margo (Wilson Sonsini Goodrich & Rosati) for Google LLC.

Companies: Google LLC

Cases: TechnologyInternet NewYorkNews