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San Francisco Court Considers Google’s Search and Ad Services Free Speech

Antitrust Commentary First Amendment
By Jens Frankenreiter – Edited by Henry Thomas S. Louis Martin vs. Google Inc., No. CGC-14-539972 (Cal. Sup. Ct. Nov. 13, 2014) Order hosted by Ars Technica A San Francisco court on November 13, 2014 dismissed a lawsuit against Google, treating Google’s search engine and third-party advertisement service as constitutionally protected free speech. The plaintiff, a website owner, had based its lawsuit on allegations that Google violated antitrust laws by treating the website unfavorably in its search results, and by withdrawing advertisement from the website. In throwing out the lawsuit, the court granted Google’s motion to apply California’s “anti-SLAPP” law, which allows a court to efficiently dismiss lawsuits against acts protected as free speech. Ars Technica, Law360, and The Guardian provide an overview of the court proceedings. Slate welcomes the decision as acknowledging Google’s role as a media platform “curat[ing] information and present[ing] it to readers in a unique, customized order.” The plaintiff is the owner of the website His complaint alleged a violation of antitrust laws based on two different sets of events. First, it contended that Google wrongly lowered the website’s position in Google’s search results. Second, it alleged that Google had stopped displaying ads on his website after the publication of a report Google considered obscene. Google replied by filing an anti-SLAPP motion under California Code of Civil Procedure Section 426.16. Under this rule, a defendant can move to strike a lawsuit against any activity protected by free speech rules, unless there is “a probability that the plaintiff will prevail on the claim.” The order, which is only one paragraph long, merely states that Google “has met its burden of showing that the claims asserted against it arise from constitutionally protected activity”, and that the plaintiff failed to produce any evidence “supporting a probability of success.” The order is the latest piece in a string of unsuccessful attempts by regulators and private plaintiffs in the U.S. to make search engines change the way they put together their search results. In 2013, the FTC decided to discontinue an antitrust investigation into Google’s search practices. And in March 2014, a federal court in New York dismissed a lawsuit against the Chinese search engine Baidu, also on the grounds of the service being protected by free speech rules. Zhang et al v. Inc, No. 11-03388 (S.D.N.Y. March 27, 2014). In Europe, by contrast, courts and regulators seem less reluctant to rule in on how search engines display their search results. The European Commission’s DG Comp is investigating whether Google’s search services conform to European antitrust rules. And in May 2014, the European Court of Justice granted individuals the right to demand the removal of personal information from search results. Jens Frankenreiter is an LL.M. ’15 student at Harvard Law School and a Ph.D. candidate at the Swiss Federal Institute of Technology (ETH) Zurich.