Suit over poor Google ranking may go forward

During a hearing here Friday, U.S. District Judge Jeremy Fogel said he's considering issuing an order that would allow KinderStart.com to amend its lawsuit against Google to add more specifics. The parent-focused directory and search engine site claims Google violated antitrust and other laws by handing KinderStart low rankings.

KinderStart alleges that its parenting search engine site suffered an approximate 70 percent drop in monthly traffic in March last year after Google buried its visibility in search results. KinderStart, which claims to have originally been in the first 10 results when Web users scoured the Internet for KinderStart, also saw an 80 percent drop in AdSense revenue.

"What Google is trying to do is take out the competition," said Gregory Yu, KinderStart's attorney.

The parenting site alleges that Google engaged in anticompetitive behavior in violation of antitrust laws by removing a competitor from its top search pages in order to maintain its dominance in the search market. During his questioning of the parties, the issue of antitrust appeared to resonate with the judge, who indicated he understood the point KinderStart was trying to make.

While Google and other search engines have been sued over rankings before, no lawsuit of this type appears to have succeeded. That's in part because search engines can claim to have a First Amendment right to rank Web sites as they see fit--much like a restaurant reviewer or book reviewer has a right to publish its own rankings.

Fogel set a Sept. 29 hearing to address revisions in the complaint, requests for a preliminary injunction on the relevant counts, and any motions on substantive matters such as Google's request to throw out KinderStart's lawsuit and issue penalties against the parenting site.

Jonathan Jacobson, an attorney at Wilson Sonsini Goodrich & Rosati who is representing Google, argued that the search giant has "no obligation" to help its rivals. He pointed to past cases where arguments like KinderStart's have failed, such as one in which a Pepsi bottler wanted a percentage of space in soda vending machines operated by competitor Coca-Cola.

"What would prevent Microsoft from coming to us, saying Google is not adequately promoting Microsoft?" Jacobson asked.

Fogel appeared less sympathetic to KinderStart's claims that its First Amendment rights were violated when its visibility on Google's search pages plummeted--thereby allegedly impeding its ability to have its virtual voice heard.

"What KinderStart is saying is that Google violated its First Amendment rights....I don't see it. Is there anything more you can address on this that you have not already?" Fogel asked KinderStart's attorney.

KinderStart contends that Google's dominant position in the market makes it responsible for assuring there is a free flow of information in the so-called Internet forum.

The judge questioned KinderStart's ability to "plead around" the language in its contract with Google that indicates the search giant ranks sites in no particular way.

David Kramer, a Wilson Sonsini attorney also representing Google, said the search giant's PageRank system is subjective, using a combination of reviews into whether a Web site is adhering to its guidelines and is worth a user's time to view.

"Google is constantly evaluating Web sites for standards and quality, which is entirely subjective," Kramer said.

The judge probed Kramer on the topic of whether Google engages in misleading behavior, and whether it uses objective criteria to evaluate sites--rather than solely relying on subjective reasoning.

"What if, say, Google says it uses facts one through 10 to evaluate a site, but actually uses number 11 to decide its rank. Isn't that misleading?" the judge asked.

Kramer, however, said Google readers understand that the site's ranking system is subjective and based on Google's opinion about whether a site is worth viewing.

KinderStart is hardly the first company to face a fall in its Google ranking. Maintaining a high Google page rank is a common topic of discussion among Webmasters.

In February, Google noted that BMW's Germany-based site was completely blacklisted, and three years ago, SearchKing lost its bid for a preliminary injunction motion after it was blacklisted. Another plaintiff abandoned his lawsuit against Google earlier this month.