Moving forward, we will restrict ad serving on pages that misrepresent, misstate, or conceal information about the publisher, the publisher's content, or the primary purpose of the web property," a Google spokesperson said in a statement given to Reuters. This policy includes fake news sites, the spokesperson confirmed. Google already prevents its AdSense program from being used by sites that promote violent videos and imagery, pornography, and hate speech.
Earlier today, someone asked me whether this development might pull Google out of the realm of CDA § 230(c) immunity, so I thought I'd address the issue here.
I doubt Google's closing of its advertising tools to "fake news" sites rises to the level of partial "creation or development" of content by an "information content provider" (which is not immune under CDA § 230(c)). If anything, the ban fits snugly within an (immune) "interactive computer service['s]" power to exercise traditional editorial functions* and "access software provider" functions** over third-party content. Plus, search engines in particular are afforded a great deal of leeway when it comes to CDA § 230(c) immunity.***
That said, perhaps Google's decision does not present a CDA § 230(c) issue at all, since the ban on "fake news" sites from using ad tools here occurs at the front-end rather than at some point after the third-party content has been submitted.
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* Decisions to publish, withdraw, postpone, or alter content. Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Batzel v. Smith, 333 F.2d 1018, 1031 FN. 18 (9th Cir. 2003).
** The term "access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. 47 U.S.C. § 230(f)(4).
*** See Carafano v. Metrosplash.com. Inc., 339 F.3d 1119, 1125 (9th Cir. 2003); see also Parker v. Google, Inc., 422 F.Supp.2d 492, 501 (E.D.Pa. 2006), aff'd 242 Fed.Appx 833, 838 (3rd Cir. 2007); see also Goddard v. Google, Inc., 640 F.Supp.2d 1193, 1198 (N.D.Cal. 2009).