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Google's 'neutral' ad tool escapes fraud liability, says US court

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Google was not liable for the content of adverts that appeared on its search pages even though it made suggestions about what terms an advertiser should associate with, a US court has said.

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.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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