Ginsberg v. Google Inc.

Background

Ambassador Marc Ginsberg and the Coalition for a Safer Web sued Google Inc. The Coalition’s stated mission is to prevent terrorist and extremist groups from using social-media platforms to advance their agendas. The plaintiffs alleged that Telegram, an instant-messaging application, was routinely used to spread racist and anti-Semitic speech and to encourage violence. They sought to hold Google liable for making Telegram available through the Google Play Store.

The first amended complaint asserted three claims: negligent infliction of emotional distress, violation of the unfairness prong of California’s Unfair Competition Law, and violation of the unlawfulness prong of that law. The plaintiffs alleged that Google published developer guidelines prohibiting apps that promote violence, incite hatred, or contain terrorism-related content, but failed to enforce those guidelines against Telegram.

Rule 12(b)(6) motion

Google moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. Google argued that all claims were barred by Section 230 of the Communications Decency Act, that the plaintiffs lacked statutory standing to bring the California Unfair Competition Law claims, and that the emotional-distress claim did not adequately allege duty or causation.

Section 230

The court applied the Ninth Circuit’s three-part test for Section 230 immunity. Immunity applies when: (1) the defendant is a provider or user of an interactive computer service; (2) the plaintiff seeks to treat the defendant as the publisher or speaker of information; and (3) that information was provided by another content provider.

The court found the first requirement satisfied because the plaintiffs did not dispute that Google is an interactive computer service provider. The second requirement was also satisfied because the plaintiffs’ claims were based on Google’s decision to continue making Telegram available in the Play Store. In the court’s view, deciding whether to remove Telegram was a publishing decision involving third-party content. The court rejected the plaintiffs’ argument that their claims were based only on Google’s failure to enforce its own guidelines.

The court found the third requirement satisfied because Telegram and the allegedly hateful content on Telegram were created by third parties, not Google. The court distinguished a Ninth Circuit decision involving a negligent-design claim against a social-media company, explaining that the plaintiffs here did not allege a products-liability or similar claim based on Google’s design or manufacture of a product. The court therefore held that Section 230 immunity applied and granted the motion to dismiss as to all claims.

California Unfair Competition Law claims

The court separately held that the plaintiffs had not alleged the economic injury required for statutory standing under California’s Unfair Competition Law. The plaintiffs based these claims on Ambassador Ginsberg’s purchase and use of a Samsung Galaxy Express. They alleged that part of the phone’s value came from Google’s policies and that Google’s failure to enforce those policies deprived them of a benefit of the purchase.

The court found that the plaintiffs had not alleged facts showing that enforcement of Google’s developer guidelines was an agreed-upon benefit of the phone purchase. They also did not allege that Ambassador Ginsberg bought the phone from Google or that Google promised Android owners that the Play Store would be free of hateful speech. The court concluded that the plaintiffs had not plausibly alleged economic injury caused by Google’s alleged failure to enforce its guidelines and granted the motion to dismiss Claims 2 and 3.

Negligent infliction of emotional distress

The court considered the negligent-infliction-of-emotional-distress claim only as to Ambassador Ginsberg because, under the authority cited by the court, business entities cannot recover emotional-distress damages. The court agreed with Google that the claim did not adequately allege a duty or causation.

The court found no general duty requiring Google to prevent emotional distress merely because its service facilitated user communications. It also rejected the plaintiffs’ alternative argument that Google assumed a duty by publishing developer guidelines, finding no cited authority establishing that those guidelines created an enforceable duty to Android-device purchasers.

The court further held that the alleged connection between Google’s conduct and Ambassador Ginsberg’s emotional distress was too indirect. The alleged chain was that Ginsberg is Jewish and publicly known, Telegram is used to encourage violence against Jewish people, and Google failed to remove Telegram from the Play Store. The court found that this did not satisfy causation and granted the motion to dismiss Claim 1.

Leave to amend and disposition

The court concluded that amendment would be futile because the claims were barred by Section 230, the plaintiffs lacked statutory standing under the Unfair Competition Law, and the facts did not support liability for negligent infliction of emotional distress. The court stated that the plaintiffs had not identified additional facts that could cure these problems.

Judge Beth Labson Freeman granted Google’s motion to dismiss the first amended complaint without leave to amend as to all claims. The court dismissed the action with prejudice.