A three-judge panel at the U.S. Court of Appeals for the Fifth Circuit has thrown out a district court order that had prevented Mississippi Attorney General James Hood from taking legal action against Google for not doing enough to weed out illegal content in search results.
The move clears the way for Hood to pursue his demand that Google supply detailed information on its advertising practices and its efforts to prevent dangerous and infringing content from surfacing in search. Hood has previously warned that if Google does not comply with the subpoena, he would go to court and obtain an order compelling compliance under Mississippi law.
While the appeals court ruling might appear to be a setback for Google, it does not prevent the company from legally opposing Hood’s subpoenas and compliance efforts if he were to follow through on his threat.
The dispute goes back to late 2012 and early 2013, when Hood and several other attorneys general expressed concern to Google over the ease with which Internet users are able to find and purchase pirated content and counterfeit products and drugs via Internet searches.
Hood has demanded a broad set of documents from Google so he can determine if the company’s search algorithm, advertising policies and functions like its autocomplete feature actually are making it easier for people to find such content on the Web.
According to the appellate court, Google has consistently argued that it is doing all it can to mitigate the availability of illegal content in search results through numerous measures that it has voluntarily implemented over the years.
The company has contended that doing more in an effort to weed out illegal content would infringe on the free speech rights of Internet users. Google has also argued that as an Internet service provider, it cannot be held liable under federal law for content published online by others.
In Dec. 2014, Google filed a motion with the U.S. District Court for the Southern District of Mississippi seeking relief from Hood’s demands for information citing violations of federal laws and its constitutional rights. In response, the court issued a preliminary injunction preventing Hood from enforcing his subpoena or from bringing either a civil or a criminal lawsuit against Google for failing to comply with it.
Following Hood’s appeal of that decision, the Fifth Circuit reviewed the case and issued its opinion last week. In a 23-page opinion, the appellate court held that the magistrate judge who granted injunctive relief to Google had erred in doing so.
“This lawsuit, like others of late, reminds us of the importance of preserving free speech on the Internet, even though that medium serves as a conduit for much that is distasteful or unlawful,” Circuit Judge Stephen Higginson wrote on behalf of the court. “Yet we are also cognizant that an injunction is an equitable remedy that should only issue when essential to prevent an otherwise irreparable injury,” he wrote.
In this case, it is too soon yet to know for sure whether Hood’s pursuit of information from Google, or his threatened enforcement action will result in any irreparable harm, he said. As a result, the preliminary injunction was issued far too soon, the court held.