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Google Challenged in Florida Court over First Amendment Claim

It’s no surprise that a relatively obscure court case in the United States is being watched closely in Europe – since the defendant is Google and the company faces a $3.4 billion antitrust violation fine from the European Commission for abusing its hegemony in the online search market. The EU also reportedly plans a ban on manipulation of search results that suppresess any Google competitors, and Bloomberg reports a decision in the 7-year battle with Google may come down as early as this month.

No, the surprise is that here in the United States, where SEO firm e-Ventures Worldwide LLC challenged Google’s decision to remove its website listings. A Florida judge has denied a rubber stamp of Google’s claim to First Amendment protection for its decision. Historically, the internet company has prevailed when it argued in similar circumstances that its listings are an editorial expression of protected speech.

“Every prior decision had held that internet search engines offer editorial opinions immune from liability under the First Amendment,” the company’s attorneys asserted in a June 1 court filing, requesting an appeal of U.S. District Judge John Steele’s decision to allow the case to proceed. The company’s parallel argument on the basis of the Communications Decency Act was similarly shot down in Steele’s ruling. Steele has held that Google’s “opinion” isn’t protected because, in essence, it isn’t really an opinion. The company’s decisions were based in part on facts that can be proven as true or, alternately, disproven.

Google argues that at its heart, the case is about holding the company liable for its editorial decisions pertaining to what content to present to its users. The SEO company isn’t the first business to complain about Google’s search rankings, which the company is free to determine in the same way that a media outlet decides if a story is news, and where to place it. Steele disagreed and said Google is defending itself for actions it took to suppress competition – because there’s a lot more going on in the e-Ventures lawsuit.

The e-Ventures firm filed its initial lawsuit in November 2014 after the Google staff manually removed all traces of the firm and its websites, including paid search, following a third-party complaint. That de-listing occurred in September 2014, although the suit points out that Google never pulled the revenue-generating AdWords products for e-Venture sites that it deemed noncompliant with quality standards.

Attorneys for e-Ventures note that although the sites were removed for being “spammy,” they included the company’s corporate website and entirely new websites with no history of activity associated with them. They also included “test” sites created to see if Google would remove them without any content basis; they did. Google admits that its employee manually removed all sites related to e-Ventures – and that’s where the problem with Google’s defense arises. If the company made its de-listing decisions on the basis of identity – “all known e-Ventures sites” – then Google didn’t make editorial decisions about the content. Google, in fact, admits that with efficiency in mind, it treated e-Ventures as a single entity.

“They acknowledged that they removed 366 websites because they believed they were associated with him,” said Alexis Arena, an attorney with Flaster/Greenberg in Philadelphia who represents e-Ventures for CEO Jeev Trika. “And I don’t know that they reviewed all the content of the websites. So, how do you have First Amendment protection for exercising an editorial decision, when you don’t even review what it is you’re editing? It was because it’s the company, not the content.”

The company, Arena adds, is an SEO provider whose mission is to help clients improve their visibility in search engine rankings so that they are more readily discovered. Since the mission conflicts directly with Google’s own revenue-generating system, Google as a monopoly has a reason to shut down SEO sites.

Google’s dominance in the search market, specifically where SEO companies are viewed as competition for Google’s own services, is well noted in e-Venture’s court filings. “Google’s assurance that there are ‘plenty of alternatives’ to Google is disingenuous; Google has a practical monopoly in the search market and its competitors are pseudo-competitors,” reads the successful defense against dismissing the case.

In the original filing, e-Ventures clearly outlines the conflict between SEO companies and their impact on Google revenues: “If companies are successful in achieving website prominence in Google’s natural search listings, there is less of a need for those companies to purchase Google’s ‘AdWords’ advertising services. If companies pay SEO providers to increase their visibility on Google, those are also marketing dollars that those companies are not paying to Google instead.”

Those dollars are the lion’s share of Google’s revenues, in a global market the company dominates with 70 percent of the U.S. market share and 90 percent in Europe. That domination, in and of itself, isn’t necessarily the problem in Europe, according to EU Competition Commissioner Margrethe Vestager.

“However, dominant companies have a responsibility not to abuse their powerful market position by restricting competition,” Vestager said in a 2015 statement, “either in the market where they are dominant or in neighbouring markets.” The EU stance extends to a second investigation into Google practices affecting android smartphone users, and Vestager says regulators are working through “truckloads of data sets” related to travel, mapping and local search related to shopping services.

As the e-Ventures case continues to work its way through the courts – and with the court’s seismic shift on First Amendment legal protections in play – it’s likely that Europeans will continue to watch the U.S. case as closely as Americans have been monitoring Google’s legal challenges in the EU and elsewhere.