A lawsuit has been filed against search engines for returning alleged defamatory results about the inventor of a vibrating toilet seat. Of course, any defamation lawyer would immediately recognize that Section 230 of the Communications Decency Act is on its face a complete defense to this type of claim. But as an online defamation lawyer specialist I have to wonder whether the issue has ever been truly tested in the cases filed against Google. I doubt it.
So, from a veteran defamation lawyer involved in the Section 230 wars, I have to ask the question I have never seen answered or raised before. Consider the state of things today. First, you lose your immunity for material editing of content. Second, the search engines, particularly Google, make subjective decisions on content placement all the time. Third, they do it, however, by automating the subjective editing through algorithms and applying their employees' personal decisions and prejudices to search results by grading or assigning "authority" through an automated and seemingly objective process (at least to the uninformed). Fourth, Google decides what will be presented in its own search results, and most importantly in what order that presentation will occur.
Can a business simply take subjective decisions on editing, turn them into objectively defined criteria functioning within a mathematical equation, and avoid becoming a content provider and losing Section 230 immunity? Probably not the way the statute is drafted today. Which means that when this lawsuit comes, it will be a bet the business case for Google. Because if they lose, they will likely have virtually unlimited and incalculable liability for defamation.
Think of it this way. The "misearable failure" Google bomb was pointing at the White House's George Bush and coming up at the top of the search results when that term was searched. Just after Obama took office, Google went in and removed the result since it was now pointing at Obama as a "miserable failure". This is the type of thing that happens with apparent impunity. And the defense offered by Google that it was a coincidental result of running an automated process to identify Google Bombs and remove them from the results is a bit less than convincing, but a clear example of how Google materially edits content.
As a defamation lawyer it is clear that within certain parameters Google must be able to function without fear of Section 230 immunity loss. They should be immune. Yet the existing law behind which so many hide today cuts both ways. It was passed at a time before Google and Web 2.0 and User Generated Content became major information delivery systems and processes.
It needs to be amended to protect legitimate service providers like search engines doing their job of indexing the web and creating structure out of mass confusion. I don't personally like the idea of search engines having this type of liability since it does not bode well for the free flow of truthful information. But Congress giveth, and Congress taketh away.
Is Google destined to lose its immunity for subjective editing decisions having a material impact on the content it presents? Possibly.
I bet that isn't figured into Google's market cap or valuation. But it should be.