PITTSBURGH – Google maintains that the Communications Decency Act bars the argument made by a Pittsburgh attorney, who is attempting to compel the search giant to take down an unfavorable professional review about him that he claims is both fraudulent and from a person who doesn’t actually exist.
Kerry Lewis first filed suit in the Allegheny County Court of Common Pleas on Oct. 21 versus Google, Inc., also of Pittsburgh and Alphabet, Inc., of Mountain View, Calif.
“Defendant Google has published a ‘review’ by a ‘Lolo Mosby’ in which she reports a horrible experience interacting with plaintiff in his professional capacity. Her review describes plaintiff as ‘failing to show up for a hearing’ and claims plaintiff ‘ruined her life,” the suit stated.
“Plaintiff has advised defendants that the review is a fraud, that plaintiff has never had a client named ‘Lolo Mosby,’ there is no court record or other document which would support Mosby’s claim that plaintiff represented her and despite plaintiff’s request to defendants to investigate this fraud, defendants have refused to take any action and continue to maintain and disseminate the fake review in connection with Internet searches of the plaintiff conducted on its platform.”
Despite requesting the review be removed numerous times over the last year, Lewis said the defendants have refused to do so again and again.
“Defendants’ conduct is willful, wanton and wrongful in this it has systematically refused to respond to the plaintiff’s requests, objections and pleas regarding the verifiable means at defendants’ disposal to confirm that both ‘Lolo Mosby’ and the review she posted are a fraud. Further, there are no documents, court records or other documents which in any way suggest the plaintiff has ever represented the person identified as ‘Lolo Mosby,’ the alleged author of the bogus review,” per the suit.
“The defendants’ failure to conduct an investigation and remove the fraudulent review has caused damage to plaintiff’s professional reputation and resulted in great injury to plaintiff’s good name, credit and reputation, all of which has been to his great financial loss and damage.”
Google filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on Nov. 18, citing diversity of citizenship between the parties and the amount of damages crossing the federal court threshold of $75,000.
UPDATE
Google followed up with a motion to dismiss Lewis’s case on Nov. 25, explaining it is only a party to the action “solely because of its role as an interactive service that facilitates access to third-party content”, and referring to the Communications Decency Act in its argument for the action to be thrown out.
“Plaintiff’s case is categorically barred by Section 230 of the Communications Decency Act, a federal statute that provides broad immunity to online service providers in circumstances exactly like these…one of the express purposes of this statute was to make clear that online services cannot be sued for republishing allegedly defamatory content created by Internet users, or compelled on pain of liability to remove such content from their services,” according to Google’s dismissal motion.
“An unbroken line of cases in the Third Circuit and throughout the country has applied Section 230 to bar such claims, including countless cases involving Google and other websites that provide access to third-party business reviews. Plaintiff’s lawsuit against Google runs headlong into this federal statutory immunity. The deficiencies in Lewis’s complaint cannot be cured through amendment, and Google therefore respectfully requests that the Court dismiss the complaint in its entirety with prejudice.”
Lewis opposed the dismissal motion with a brief filed on Dec. 23.
“The instant complaint asserts defendants received adequate notice of fraud, willfully chose not to investigate it and ignored readily-available information to verify that the content material was false. Further, defendants have the electronically-stored information, which proved ‘Lolo Mosby’ was a pseudonym used by the person submitting the false content,” the brief read, in part.
“Ms. Mosby’s review of plaintiff in his professional capacity as an attorney was false, demeaning and an outright lie. Plaintiff notified defendants regarding the falsity of Ms. Mosby’s post and defendants rejected multiple requests to investigate the fraud, notwithstanding defendants had information readily available as the ‘internet service provider, which maintained the ‘post’ on its search engine service.”
Lewis believes that Section 230’s statutory law has its boundaries, which he argues Google violated.
“Defendants as an ‘interactive computer service’ have a duty to conduct their enterprise ‘in good faith.’ Section 230 immunity does not apply to these ancillary circumstances that do not involve ‘publishing of third-party content’, but relates to subsequent conduct of defendants where they unilaterally refused to investigate fake, third-party content rife with disparaging statement, after receiving credible notice that the content was fraudulent and failed to remove it from the platform, ultimately justifying its inactions on the basis of immunity protection,” the brief stated.
For counts of defamation, the plaintiff is seeking damages, jointly and severally, in a sum in excess of the arbitration limits of the Court, plus a trial by jury.
The plaintiff is representing himself on behalf of Lewis Lewis & Reilly, in Pittsburgh.
The defendants are represented by Ryan James of Tucker Arensberg, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01784
Allegheny County Court of Common Pleas case GD-20-010995
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com