Google Prevails with Section 230 Defense in App-Related Hate Speech Suit

Former United States Ambassador Marc Ginsberg and an anti-terrorism organization he created, Coalition for a Safer Web (CSW), have lost their case against Google LLC which alleged that the company was liable for failing to enforce its own app developer guidelines and policies. Last week’s opinion by Judge Beth Labson Freeman found Google immune from suit under Section 230 of the Communications Decency Act of 1996 (CDA).

According to the opinion, Ginsberg “has had a notable career in public service and in the public eye.” Among other accomplishments, he served as the first Jewish ambassador to an Arab nation, Morocco. Ginsberg reportedly created CWS to prevent terrorist and extremist groups from using social media platforms to further their agendas.

The plaintiffs’ revised complaint alleged that the app “Telegram,” offered for download on the Google Play Store, does not comply with Google’s developer guidelines and is used to transmit racist speech and incite violence against Jewish people and people of color that violates California law. The filing stated claims for negligent infliction of emotional distress (NIED) and violations of California’s Unfair Competition Law.

Google once again moved to dismiss, and in last week’s opinion, the court agreed, this time dismissing the suit with prejudice. Judge Freeman first undertook the three-prong CDA Section 230 analysis to determine its applicability.

The first prong, that Google is an interactive computer service provider, was satisfied without dispute from the plaintiffs, the court said. It next considered whether Google was a publisher of the challenged material, in this case, the Telegram app, which its creators sought to place in Google’s Play Store. The court concluded that “the undertaking that Google allegedly failed to perform with due care was removing offending content from the Play Store,” and as such, found Google a publisher within the meaning of the test.

The final prong questions who created the content at issue, the court wrote. In the instant case, it was made entirely by a third party as the plaintiffs “do not allege that Google helped to develop Telegram or created any of the online content giving rise to this lawsuit.”

Though the court found Section 230 of the CDA applicable, it dismissed the claims on other grounds too, including that the plaintiffs failed to plead all elements of their NIED allegation.

Ginsberg and CWS are represented by The Law Office of Keith Altman and Google by Wilson Sonsini Goodrich & Rosati.