Some courts have begun to question whether Congress could have anticipated the current scope of the Internet in 1996, when it immunized websites from liability for third party content regardless of whether the site makes any effort to monitor the content or ensure its accuracy. Still, as discussed in FVLD’s recent Legal Update, courts have left the issue in the hands of Congress, leaving plaintiffs brave (or wealthy) enough to challenge Section 230 to seek workarounds.
One such recent lawsuit suggests that businesses concerned about their e-reputations may face problems other than Yelp reviews. The plaintiff in Serbian Crown, Virginia, Inc. v. Google, Inc. blamed its restaurant’s closing on Google Maps users manipulating its listing, so that Serbs seeking specialties like lion and antelope meat believed the restaurant was closed weekends. Although doubters may suggest that the restaurant failed because of its narrow niche or because unappetizing reviews prompted readers to venture elsewhere for emu, Serbian Crown had reportedly been in business for decades in an area with little foot traffic prior to the appearance of the erroneous Google Maps listing. A Wired article about the lawsuit suggests that the allegations are consistent with numerous other instances of competitors sabotaging businesses’ Google Maps listings to gain an advantage.
Serbian Crown brought a negligence claim and a claim for false advertising under the federal Lanham Act. It contended that Google uses its public listings as a “lead-in for purposes of selling advertising” to businesses, and that Google “knew or should have known” that allowing users to post false information regarding a restaurant’s hours “would pose a substantial danger of economic harm to” Serbian Crown. Given that Yelp has survived allegations that it manipulated its ratings to reward advertisers at the expense of others, Google’s business motives are unlikely to affect the outcome for Section 230 purposes.
Predictably, Google filed a motion to dismiss the lawsuit, citing Section 230 with respect to the negligence claims and arguing that, among other things, Serbian Crown lacks standing to allege false advertising under the Lanham Act because Google was not Serbian Crown’s competitor. Perhaps realizing that establishing negligence or even willful disregard by Google will likely not suffice under Section 230, Serbian Crown voluntarily dismissed its negligence claim. Its response brief, however, correctly noted that the recent Supreme Court case, Lexmark International, Inc. v. Static Control Components, Inc., rejected Google’s argument that false advertising claims under the Lanham Act are only available to direct competitors.
Google’s reply brief apologizes for missing the Lexmark case but argues that Serbian Crown’s claim still must fail because it cannot show that the erroneous listing caused its damages, and because the listing is not actionable “commercial speech” under the federal Lanham Act since it did not advertise a product or service. Google also argues that Section 230 bars the Lanham Act claim in addition to the negligence claim, although the court could ignore this argument since it was not raised in Google’s initial brief. Section 230’s immunity does not extend to intellectual property claims, and the Lanham Act is an intellectual property (trademark) statute, but Google argues that Serbian Crown’s purported cause of action did not relate to intellectual property but rather deceptive advertising.
Although Serbian Crown still faces significant obstacles, especially establishing that the listing qualified as an advertisement, it will be interesting to see whether this court or others allow Lexmark to operate as a Section 230 workaround. Until then, a business’s best option when it comes to Google Maps may be to simply claim its own listing, so that it can take control of the listed address, hours of operation, and so on. A consultant for Serbian Crown (the owner did not own a computer and had never used Google) eventually tried this, but by that time it was allegedly too late, and the restaurant could not recover.