Eric Goldman posted about the KinderStart dismissal. He will have more to say, but I wanted to do my “news for storage jars” version about the false advertising aspects of KinderStart’s claim against Google. KinderStart alleged that false statements to consumers and the SEC were part of Google’s anticompetitive conduct; the court found that the complaint’s allegations didn’t overcome the presumption that false statements have a de minimis effect on competition in an antitrust context. Google’s statements that its search results were objective, the court thought, “almost by definition cannot be ‘clearly false’” and would be more readily understood in the context of Google’s promise that it does not accept compensation for placement in results.
Although KinderStart wasn’t specifically given leave to amend its complaint to add the new Lanham Act claims, the court considered them on the merits. As I suspected, KinderStart lacked standing to complain about Google’s representations of objectivity. It alleged harm from Google’s manipulation of search results, not from Google’s claims of objectivity. (I would explain it slightly differently – its harm was suffered as a website, not as a search engine competitor who lost customers because Google fooled people into thinking that it was a better search engine than KinderStart.) Moreover, the court found that representations about PageRank are not made in “advertising or promotion” as required by the Lanham Act.
KinderStart’s state unfair competition claims suffered similar fates. Aside from allegations of unfairness and deception that duplicated the rejected federal claims, KinderStart failed to identify any way in which Google’s AdSense agreements were deceptive. The agreements wouldn’t lead anyone to believe that participation in AdSense would prevent removal from search results or downgrading of PageRank.
Finally, the court rejected KinderStart’s defamation and libel claims based on Google’s assignment of a PageRank of zero to KinderStart’s site, allegedly a representation that the site was worthless. The court accepted Google’s characterization of PageRank as opinion. From materials incorporated by reference in the complaint, it was clear that Google does not represent PageRank as an algorithmic fact untouched by human intervention. Moreover, because KinderStart didn’t adequately allege malice, Google was entitled to immunity under the common interest privilege. That privilege allows Google to communicate information at the request of an interested person, as long as it does so without malice. To see a PageRank, a user must install Google’s toolbar (or have it installed for her), activate the PageRank feature, navigate to a particular website, then rest her cursor on the PageRank icon on the toolbar. Under those circumstances, Google’s provision of PageRank is a response to a request from an interested person. (Back when I used the toolbar, I recall PageRank displaying automatically, but I’ll accept that’s not the current configuration.)