Case Name: Aaronson, Austin, P.A., v. Google, LLC
Case No.: 18-CV-335792

Currently before the Court is the demurrer by defendant Google, LLC (“Defendant”).

Factual and Procedural Background

This action arises out of advertisements posted by non-lawyers on Defendant’s search engine. Defendant is “the operator of a globally-reaching internet search engine that also operates commercially through the solicitation of funds for advertising under certain ‘ad words’ … .” (Complaint, ¶ 2.) Plaintiff Aaronson, Austin, P.A. (“Plaintiff”) is a law firm based in Orlando Florida, practicing consumer law on behalf of aggrieved timeshare owners. (Id. at ¶ 1.)

“From and since 2014, … Plaintiff … had an agreement with Defendant” to “advertise online in the search engine operated by … Defendant.” (Complaint, ¶ 3.) Pursuant to that agreement, Plaintiff made payments to Defendant “on a ‘per-click’ basis … under certain ‘ad words’ and/or ‘search terms’, particularly ‘timeshare lawyers’, and derivatives thereof.” (Id. at ¶ 4.)

Defendant allegedly permitted “advertising by non-lawyers … under its own ad words ‘timeshare attorneys’, ‘timeshare lawyers’, and derivatives thereof.” (Complaint, ¶ 9.) Defendant did not screen or check the credentials of the non-lawyers “to the detriment of … Plaintiff and the consuming public at large.” (Id. at ¶ 21.) Plaintiff alleges that Defendant, thereby, allowed non-lawyers to “tout themselves as lawyers and attorneys for commercial gain” and “engaged in ‘deceptive and untrue’ representation(s) concerning the licensed status and standing of [non-lawyers] … .” (Id. at ¶¶ 19, 21, 26, & 30.)

Plaintiff sent a letter to Defendant on August 15, 2018, putting Defendant on notice “that this falsehood was being perpetrated” at Plaintiff’s expense and the expense of “other legitimate law firms similarly situated.” (Complaint, ¶ 10.)

Notwithstanding this notice, Defendant “persisted in realizing commercial gain from [the non-lawyers] … while perpetrating the falsehood that they are duly qualified as licensed attorneys.” (Complaint, ¶ 11.) Plaintiff alleges that “[t]here exists a reasonable probability that a number of individuals hiring [non-lawyers] would have instead hired … [Plaintiff] as a duly credentialed and legitimate law firm” and “Defendant wrongfully prevented the hiring of … Plaintiff by these individuals [by] … permitting [non-lawyers] to tout themselves as attorneys and lawyers.” (Id. at ¶¶ 12-13.) Defendant allegedly intended to “perpetrate this wrongful arrangement as it inured to … its commercial advantage.” (Id. at ¶ 14.)

As a result of Defendant’s conduct, Plaintiff sustained financial loss, including “[t]he amount paid to [non-lawyers] … that would have otherwise gone to … Plaintiff” and “[t]he amount … Plaintiff … overpaid in competitive bidding for ad words to Defendant by virtue of an inflated market for these search terms artificially created by the wrongful involvement of the [non-lawyers].” (Complaint, ¶¶ 15 & 23.)

Based on the foregoing allegations, Plaintiff filed a complaint against Defendant, alleging causes of action for: (1) violation of Business and Professions Code section 17200 and Civil Code section 1780; (2) unjust enrichment; and (3) injunctive relief.

On February 20, 2019, Defendant filed the instant demurrer. Plaintiff filed an opposition to the demurrer on March 27, 2019. On May 24, 2019, Defendant filed a reply.

Discussion

I. Demurrer

Defendant demurs to the complaint, in its entirety, on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

A. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop, supra, 233 Cal.App.2d at p. 353; see Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

B. Analysis

Defendant argues, among other things, that it is immune from Plaintiff’s claims under federal law. Specifically, Defendant asserts that the complaint is barred by section 203 of the Communications Decency Act of 1996 (“CDA”). (See 47 U.S.C. § 230.)

Congress enacted the CDA to immunize providers of interactive computer services against liability arising from content created by third parties. (See 47 U.S.C. § 230(c)(1) [“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”]; Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC (9th Cir. 2008) 521 F.3d 1157, 1162 (Fair Hous. Council) [“In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete.”].) Congress considered the fact that “ ‘[it] would be impossible for service providers to screen each of their millions of postings for possible problems.’ ” (Doe II v. MySpace, Inc. (2009) 175 Cal.App.4th 561, 569, quoting Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 331.) Finding interactive computer services played a critical role as forums for speech and activities protected by the First Amendment to the United States Constitution, Congress extended this immunity to encourage the continued operation of websites that might otherwise be shuttered due to the “ ‘specter of tort liability in an area of such prolific speech.’ ” (Ibid.)

There are three conditions that must be satisfied to invoke immunity under the CDA. The CDA bars claims if: (1) the defendant is a provider or user of an interactive computer services; (2) the information the plaintiff seeks to hold the defendant liable for is provided by another information content provider (i.e., the defendant is not an information content provider); and (3) the plaintiff’s claim seeks to hold the defendant liable as the “publisher or speaker” of that information. (Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc. (N.D. Cal. 2015) 144 F.Supp.3d 1088, 1093-1094 (Sikhs for Justice).)

Notably, “[c]ourts consistently have held that [section] 230 provides a ‘robust’ immunity, [citation], and that all doubts ‘must be resolved in favor of immunity,’ [citation]. Indeed, [section] 230’s ‘broad immunity’ extends to ‘all claims stemming from [an interactive service provider’s] publication of information created by third parties.’ [Citation.] The result is that ‘[p]arties complaining that they were harmed by a [w]eb site’s publication of user-generated content … may sue the third-party user who generated the content, but not the interactive computer service that enabled them to publish the content online.’ [Citation.]” (Goddard v. Google, Inc. (N.D. Cal., Dec. 17, 2008, No. C 08-2738JF(PVT)) 2008 WL 5245490, at *2 (Goddard); Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016) 817 F.3d 12, 18–19 (Jane Doe No. 1) [“There has been near-universal agreement that section 230 should not be construed grudgingly. [Citations.] This preference for broad construction recognizes that websites that display third-party content may have an infinite number of users generating an enormous amount of potentially harmful content, and holding website operators liable for that content ‘would have an obvious chilling effect’ in light of the difficulty of screening posts for potential issues. [Citation.]”].)

Here, the parties do not appear to dispute that Defendant is a provider of interactive computer services. In fact, Plaintiff sued Defendant in its capacity as an operator of its eponymous search engine. (Complaint, ¶ 2.) In similar circumstances, courts have determined that Defendant was a provider of interactive computer services. (See e.g., Bennett v. Google, LLC (D.C. Cir. 2018) 882 F.3d 1163, 1167 [“[A]s many other courts have found, Google qualifies as an ‘interactive computer service’ provider because it ‘provides or enables computer access by multiple users to a computer server.’ ”] & Parker v. Google, Inc. (E.D.Pa. 2006) 422 F.Supp.2d 492, 500-501.) Consequently, the first condition is met.

With respect to the second condition, an information content provider is defined as someone who is responsible, in whole or in part, for the creation or development of the offending content. (Goddard, supra, 2008 WL 5245490, at *2.) There are no allegations in the complaint that Defendant created or developed the non-lawyers’ advertisements. Similarly, there are no allegations that Defendant requires or encourages the non-lawyers to put certain content in their advertisements. (Cf. Fair Hous. Council, supra, 521 F.3d. at p. 1164 [the website was an information content provider when the objectionable content at issue, a registration questionnaire, was created by the website and users were required to provide answers to the questions].) Rather, based on the allegations of the complaint, it appears that Defendant merely provided neutral tools which the non-lawyers used to publish the allegedly harmful content. (See Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1121 [the website was not an information content provider when the allegedly harmful content—the false implication that an individual was unchaste—was created and developed entirely by the user, without prompting or help from the website operator; although the website provided neutral tools, which the user used to publish the libel, the website did nothing to encourage the posting of defamatory content].) Thus, the second condition is met.

Regarding the third condition, courts consider “whether the duty the plaintiff alleges the defendant violated derives from its conduct as a publisher or speaker.” (Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1102 (Barnes).) “[P]ublication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” (Ibid.) Consequently, decisions to exclude material that third parties seek to post online, not remove content that has been posted online, or delete user profiles on social networking sites, have all been held to be quintessential publishing activity immunized from liability under the CDA. (See Sikhs for Justice, supra, 144 F.Supp.3d at p. 1094; Barnes, supra, 570 F.3d at 1098-99; Riggs v. MySpace, Inc. (9th Cir. 2011) 444 Fed.Appx. 986, 987.)

Notably, courts have repeatedly rejected attempts to recharacterize claims fundamentally based on the posting of online information in order to avoid the CDA’s prohibition on treating the defendant as a publisher or speaker of information.

For example, “[i]n [Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816 (Gentry)], the plaintiffs brought a claim under California’s autographed sports memorabilia statute, [citation], seeking to hold eBay liable for its alleged failure to furnish certificates of authenticity in connection with the sale of autographed merchandise offered by users of its website. [Citation.] To avoid the application of [section] 230, the plaintiffs argued that they merely were ‘seek[ing] to enforce eBay’s independent duty under the statute to furnish a warranty as the “provider of descriptions,” not as a publisher.’ [Citation.] The court rejected this argument, holding that ‘the substance of [plaintiffs’] allegations reveal they ultimately seek to hold eBay responsible for … eBay’s dissemination of representations made by the individual defendants, or the posting and compilations of information generated by those defendants and other third parties.’ [Citation.] The court concluded that if it ‘ultimately h[eld] eBay responsible for content originating from other parties, [it] would be treating [eBay] as the publisher’ of the information. [Citation.]” (Goddard, supra, 2008 WL 5245490, at *4.)

Additionally, in Doe v. MySpace, Inc. (5th Cir. 2008) 528 F.3d 413, “the plaintiffs sued the online social utility website MySpace for its alleged failure to implement safety measures that purportedly would have prevented an assault on one of the plaintiffs, a thirteen-year-old girl, by another MySpace user whom she encountered online. [Citation.] To avoid [section] 230, the plaintiffs argued that their claims were ‘predicated solely on MySpace’s failure to implement basic safety measures,’ and therefore did ‘not attempt to treat [MySpace] as a “publisher” of information.’ [Citation.] Rejecting this contention, the Fifth Circuit held that the allegations, no matter how they were characterized, were ‘merely another way of claiming that MySpace was liable for publishing the communications.’ [Citation.] The court emphasized that ‘[i]f MySpace had not published communications between Julie Doe and [the attacker], … Plaintiffs assert they never would have met and the sexual encounter never would have occurred.’ [Citation.]” (Goddard, supra, 2008 WL 5245490, at *4.)

Lastly, in Goddard, supra, the plaintiff alleged that she was injured as a result of clicking on web-based advertisements created by allegedly fraudulent providers of services for various mobile devices. (Goddard, supra, 2008 WL 5245490, at *1.) The plaintiff attempted to characterize her UCL claim as one merely arising from Google’s receipt of “tainted funds” in connection with the advertisements. (Id. at *5.) But the plaintiff alleged that “[a]bsent Google’s provision of AdWords services to the Fraudulent Mobile Subscription Services, the Class members would never have been damaged by the Fraudulent Mobile Subscription Services,” and the sole basis for each of the plaintiff’s claims was that she “suffered damages as a result of clicking on a Google AdWords advertisement for mobile subscription services which linked to a Fraudulent Mobile Subscription Services website.” (Ibid.) As a result, the court determined that the gravamen of the plaintiff claim was that she was harmed because Google hosted certain online content and, therefore, her UCL claim effectively sought to hold Google liable for its publication of third-party content in contravention of the CDA. (Ibid.)

In this case, Plaintiff’s claims treat Defendant as a publisher or speaker because the causes of action are based on the publication of information or hosting of content. Plaintiff expressly alleges his damages were incurred as a result of the posting of the non-lawyers’ advertisements. (Complaint, ¶¶ 15 & 23.) Plaintiff also alleges that Defendant failed to adequately screen the non-lawyers’ advertisements. (Id. at ¶ 21.) The choice of what advertisements to post and the decision to screen or review advertisements are traditional publisher functions under any coherent definition of the term. Plaintiff is ultimately alleging that the the operation of Defendant’s search engine and Ad Words services contribute to the proliferation of misinformation, but it has been “held that as long as ‘the cause of action is one that would treat the service provider as the publisher of a particular posting, immunity applies not only for the service provider’s decisions with respect to that posting, but also for its inherent decisions about how to treat postings generally.” (See Jane Doe No. 1, supra, 817 F.3d at p. 20.) Therefore, the third condition is met.

In opposition, Plaintiff argues that the CDA does not apply here because his claims fall within the narrow exception for federal criminal laws set forth in section 230(e)(1). That provision declares that the CDA should not “be construed to impair the enforcement of … any … Federal criminal statute.” (Jane Doe No. 1, supra, 817 F.3d at p. 23.) But case law establishes that this exception is limited to criminal prosecutions and does not apply to civil suits. (Ibid.; Cohen v. Facebook, Inc. (E.D.N.Y. 2017) 252 F.Supp.3d 140, 157.)

For these reasons, the complaint, as currently pleaded, is barred by the CDA.

C. Conclusion

Accordingly, Defendant’s demurrer to the complaint on the ground of failure to allege facts sufficient to constitute a cause of action is SUSTAINED, with 10 days’ leave to amend.