Date: August 5th, 2022 3:24 PM
Author: aphrodisiac piazza foreskin
Failing to Act in Good Faith
The bulk of Section 230 cases deal with the first of the law’s two main provisions, 230(c)(1), which “blocks civil liability when web hosts and other Internet service providers (ISPs) refrain from filtering or censoring the information on their sites,” instead of 230(c)(2), which ensures a provider “that does filter out offensive material is not liable to the censored customer.”25 The other key difference between the two is 230(c)(1)’s broader language: (c)(2) protection only applies to actions “taken in good faith,” while (c)(1) contains no such requirement.
E-Ventures Worldwide v. Google (2016) is one of the minority of cases that dealt with (c)(2). E-Ventures Worldwide provided search engine optimization (SEO) services to its clients, helping them get ranked higher in search results on search engines such as Google. Google, on the other hand, offers a service called “AdWords,” through which companies can pay Google to rank their websites higher in its paid search listing results. Google allegedly found that many of E-Ventures’ websites were violating Google’s Webmaster Guidelines that protect users against spam. As a result, it de-indexed all of E-Ventures’ websites so they would no longer show up in Google search results.
E-Ventures sued Google for engaging in anticompetitive behavior, arguing that Google de-indexed the company’s websites because its SEO services competed with Google’s AdWords service. The case went to the District Court for the Middle District of Florida, where E-Ventures was based. Google claimed Section 230 shielded it from liability for its actions and tried to argue its case using 230(c)(1). However, because Google did filter content, instead of refraining from filtering content, it could only seek exemption under the narrower 230(c)(2). The district court did not grant Google’s motion to dismiss under Section 230 because E-Ventures provided enough evidence that Google may have acted anticompetitively; if this was the case, Google would not have been acting in good faith when it de-listed E-Ventures’ websites, and Section 230(c)(2) would not apply.26 Even though it failed to get the case against it dismissed, Google ultimately won the case when the court ruled that its actions were protected First Amendment speech.27
In a similar case, Enigma Software Group v. Malwarebytes (2019), Enigma, a company that offers malware removal tools, sued competitor Malwarebytes, alleging that Malwarebytes configured its anti-malware products to block users from downloading and using Enigma’s products. Malwarebytes argued that Section 230(c)(2) shielded it from liability for blocking access to certain content. However, the Ninth Circuit Court of Appeals ruled that Section 230(c)(2) did not apply. Section 230(c)(2) protects online services from liability for removing or restricting access to content services they consider “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”28 According to the Ninth Circuit, this does not include blocking access to content for anticompetitive reasons, as Enigma alleged.29