Ynfante v. Google LLC

Background

Robyn A. Ynfante sued Google LLC after being lured by a supposed eBay customer-service advertisement displayed through Google Ads. Ynfante alleged that the advertisement appeared at the top of Google search results for “ebay customer service number,” leading Ynfante to believe it was an official eBay helpline. After Ynfante provided account information to the scammers, they made purchases on Ynfante’s behalf and obtained sensitive personal information.

Ynfante asserted claims under New York’s false-advertising law and for negligence. The complaint alleged that Google approved the advertisement without properly verifying its authenticity and legitimacy, despite Google’s advertising policies stating that users should feel confident that advertisements are not fraudulent or misleading. Ynfante sought $8,000,000 in damages and injunctive relief. The opinion states that Ynfante was proceeding without a lawyer.

Google’s Motion

Google moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Google argued that Section 230 of the Communications Decency Act barred the claims and separately argued that the complaint failed to state claims for false advertising and negligence.

Section 230 Analysis

Section 230 generally protects an interactive computer service from being treated as the publisher or speaker of information supplied by another content provider. The court explained that this protection applies when the defendant is an interactive computer service, the claims treat the defendant as the publisher or speaker of information, and the information was provided by someone other than the defendant.

The court held that Google met all three conditions. First, the court concluded that Google is an interactive computer service because search engines fall within that definition. Second, the court found that Ynfante’s claims treated Google as responsible for screening, monitoring, and publishing the third-party advertisement. Third, the court found that the scam advertisement was produced by a third party and submitted to Google for publication.

The court rejected Ynfante’s argument that the claims were based on Google’s own conduct, including Google’s alleged failure to verify the advertisement and its placement of the advertisement at the top of the search page with an “Ad” label. Applying the Second Circuit’s “material contribution” test, the court explained that a service provider loses Section 230 protection when it directly and materially contributes to what makes third-party content unlawful. The court concluded that Google’s alleged actions did not materially contribute to the advertisement’s content or unlawfulness; instead, those actions merely displayed and identified the third-party advertisement.

Disposition

The court concluded that Section 230 barred Ynfante’s false-advertising and negligence claims. Because of that conclusion, the court did not address Google’s separate arguments that the complaint failed to state those claims on their merits.

Judge John G. Koeltl granted Google’s motion to dismiss without prejudice. The court permitted Ynfante, within 30 days, to file a motion to submit an amended complaint. Any proposed amendment would need specific, concrete, plausible allegations showing that Google directly and materially contributed to creating or developing the scam advertisement. If Ynfante did not file the required motion within 30 days, the action would be dismissed with prejudice. The clerk was also directed to close the motion docket entry and mail the opinion to Ynfante.