Dawn Bennett v. Google LLC
Opinion
Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google's motion to dismiss, concluding that the Communications Decency Act (CDA),
I.
Bennett owns DJ Bennett, a retailer of high-end sports apparel. 1 Scott Pierson is the founder of The Executive SEO Agency, which provides search engine optimization and marketing (SEO) services. In March 2013, DJ Bennett hired Pierson to provide SEO services, seeking to increase its sales. After a few months, the parties' relationship deteriorated and Pierson agreed to renegotiate his contract and accept slightly less than $20,000 as full payment for his services.
DJ Bennett paid Pierson in five installments but the fifth installment was returned by the post office as "undeliverable." Thereafter, Pierson called DJ Bennett's Vice President and General Merchandise Manager, Anderson McNeill. According to McNeill, Pierson was "hysterical" and "emotionally distraught." Compl. ¶ 10. Pierson threatened DJ Bennett, declaring "I know things, I can do things, and I will shut down your website."
After the business relationship fell apart, Pierson wrote a blog titled "DJ Bennett-think-twice-bad business ethics" and published it on the internet through Google.
Through counsel, Bennett attempted to convince Pierson to remove the post; Pierson refused. Bennett's counsel also contacted Google's general counsel and other senior corporate officers, "asking them to drop Pierson's blog because it violated Google's Guidelines of what is appropriate material for inclusion in blogs."
Google has a "Blogger Content Policy" that regulates,
inter alia
, adult content, child safety, hate speech, crude content, violence, harassment, copyright infringement, and malware and viruses.
2
Joint Appendix (JA) 42-45. Users are encouraged to "flag[ ]" policy violations through the website. JA 45. If Google finds that the blog does violate its content policies, it may limit access to the blog, delete the blog, disable the author's access or report the user to law enforcement.
II.
We review the district court's dismissal
de novo
.
Klayman v. Zuckerberg
,
The seminal case of Zeran v. America Online, Inc. 4 explained the core functions of the CDA more than two decades ago:
The amount of information communicated via interactive computer services is ... staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.
Like other circuits, we have followed
Zeran
's lead and created a three-part test to determine CDA preemption.
Klayman
,
*1167
In
Klayman
, we held that "a website does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online."
This case is controlled by the three-part test in
Klayman
. First, as many other courts have found, Google qualifies as an "interactive computer service" provider because it "provides or enables computer access by multiple users to a computer server."
Third, Bennett seeks to hold Google liable as a publisher of the content. Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing-and thus creating-the content it publishes. This argument ignores the core of CDA immunity, that is, "the very essence of publishing is making the decision whether to print or retract a given piece of content."
Klayman
,
In sum, the CDA "allows [computer service providers] to establish standards of decency without risking liability for doing so."
Green v. Am. Online, Inc.
,
For the foregoing reasons, the judgment of dismissal is affirmed.
So ordered .
The relevant facts are drawn from the complaint and are accepted as accurate for this appeal.
Bell Atl. Corp. v. Twombly
,
The "Blogger Content Policy" is not attached to the complaint or the motion to dismiss but it is included in the Joint Appendix. Although Google does not challenge its admissibility, it is unclear if we may take judicial notice of it.
See
Kaempe v. Myers
,
The Communications
Decency
Act is something of a misnomer; the Act does not promote decency so much as it acts as a bulwark against "intrusive government regulation of speech."
Zeran v. Am. Online, Inc.
,
On the 20th anniversary of the CDA, Zeran was heralded as "internet law's most important judicial decision." Eric Goldman & Jeff Kosseff, Commemorating the 20th Anniversary of Internet Law's Most Important Judicial Decision , The Recorder (Nov. 10, 2017), perma.cc/RR2M-UZ2M.
"The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions."
"The term 'information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."
Bennett places great reliance on the Ninth Circuit's holding in
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC
,
Reference
- Full Case Name
- Dawn BENNETT and DJ Bennett Holdings, LLC, Appellants v. GOOGLE, LLC, Appellee
- Cited By
- 17 cases
- Status
- Published