Search engines have become the new deep pockets in this age of cyber-litigation. Despite the fact that they do not control the content of the sites they index in any way, people still routinely seek to hold them liable for unsavory or objectionable things that appear in search results. One might have thought that passage of Section 230 of the Communications Decency Act (“Section 230”) back in 1996 would have curtailed such suits, but alas, this has not been the case.
The latest attempt to hold search engines responsible for others’ speech comes courtesy of Beverly Stayart. Yes, the one and only Bev Stayart (according to her complaint, she is the only one on the Internet using that name), genealogist and animal activist extraordinaire (we at CMLP had never heard of her either). Apparently she decided to input her name as a search term at yahoo.com and altavista.com and was bombarded with spam sites purporting to sell Cialis (and other drugs to treat erectile dysfunction) or containing explicit banner ads for adultfriendfinder.com. These sites contained her name either in their “spamdexing” text or their nonsensical URLs (e.g. jewellery-makin-doorway.orge.pl/bev-stayart.html). Appalled that the presence of such sites might sully her wholesome image, she sued Yahoo! and Overture (provider of altavista.com; the companies are now merged) for false endorsement under the Lanham Act and violation of privacy.
This case is a no-brainer, whether analyzed under trademark doctrine or Section 230. The federal district court, in a rather unclear opinion critiqued elsewhere, agreed and dismissed the case. But Yahoo! still had to retain counsel and expend time and money on defending the suit, even if only to the motion to dismiss stage.
In the vast majority of situations, our judicial system’s bias in favor of allowing plaintiffs their day in court is justified. But cases like Stayart’s raise my hackles. Section 230 has been around for 13 years, and although there is still some debate at the margins over its scope, there is a broad consensus on its applicability in a wide variety of more paradigmatic cases, including those involving search engine defendants. Despite the wrinkle introduced by the trademark issue (Section 230(e)(2) states that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”), Stayart's suit still strikes me as well within the realm of judicial consensus.
Given this broad consensus, I think it’s time to apply penalty provisions similar to those seen in state anti-SLAPP statutes to Section 230 cases. An amendment giving the court discretion to award attorney’s fees and court costs to defendants who succeed on a Section 230 defense in particularly clear cases would help deter frivolous lawsuits such as this one. This would help free up the court’s time to accommodate plaintiffs with legitimate grievances.
(Lee Baker is a second-year law student at Harvard Law School and a CMLP legal intern.)
