Designer Skin LLC v. S & L Vitamins, Inc., et al.
Search King, Inc. v. Google Technology, Inc.
Case No. Civ-02-1457-M (W.D. Okla., Jan. 13, 2003)
Court denies plaintiff's application for a preliminary injunction, finding plaintiff is not likely to prevail on its claim that defendant Google is guilty of tortuous interference with contractual relations as a result of having intentionally lowered the ranking of plaintiff's websites on Google's search engine.
Despite the fact that this action adversely impacted the traffic plaintiff's sites received from those using Google, the Court held that plaintiff was unlikely to prevail because Google's determination of how a page is ranked in response to a search query is an expression of opinion protected by the First Amendment which cannot give rise to a tortuous interference claim. The court further held that plaintiff, an ad broker, neither had the right to be listed on Google's search engine nor have its page ranked in a certain way in response to search requests.
Plaintiff Search King operates the PR Ad network ("PRAN"). PRAN acts as a broker, placing advertisements for its clients, and links to client web sites, on the web sites of third parties that are themselves highly ranked on Google in response to various search terms. Search King advertises its PRAN service on its own web sites, which were, at one time, highly ranked on Google's search engine. Plaintiff's sites received these rankings as result of Google's application of its site ranking algorithm, which gave plaintiff's pages a high 'page rank.' The 'Page Rank' "represents the significance of a given web page as it corresponds to a search query." Google subsequently lowered the Page Rank of plaintiff's sites, claiming that Search King's sale of advertising space on highly ranked web sites "undermine[d] the integrity of Google's Page Rank system." Links from highly ranked sites have the effect of boosting the linked-to site's ranking on Google's search engine.
Complaining that the decrease in its ranking decreased the traffic to its sites, and harmed its goodwill and reputation, Search King brought this suit, charging Google with tortuously interfering with its contractual relations with its customers. Search King sought a preliminary injunction, directing Google to restore its Page Ranks, and the ranking of its sites, to their position prior to Google's action.
Finding that plaintiff was not likely to prevail on its claim, the Court denied plaintiff's motion. To prevail on a motion for a preliminary injunction, the movant must show, among other things, that there is a substantial likelihood it will prevail on the merits of its claims. The Court held this was unlikely because the Page Rank Google assigns to a site constitutes an opinion protected by the First Amendment. As long as that statement was not "provably false" it was privileged and not actionable. Said the Court:
As a result, Google's ranking of plaintiff's site was deemed privileged speech, and thus, its utterance could not give rise to a tortuous interference claim. Interestingly, the Court concluded Google's statement was not 'provably false' notwithstanding Google's concession that the Page Rank at issue admittedly was the result of an intentional downgrading from the ranking that would have been assigned had Google's normal algorithms been followed.
In reaching this result, the Court also noted that:
Finally, the Court concluded that plaintiff's motion should also be denied because plaintiff had failed to show that Google's actions caused it irreparable injury, as the damages arising from its reduced ranking were too speculative.