Google Could Face Legal Challenge to Ranking System

Michael Hayes
SAN JOSE, Calif. — A federal lawsuit challenging Google’s site ranking system will likely proceed, according to the Judge Jeremy Fogel, who hinted during a recent hearing that he would allow the plaintiff,, to amend its lawsuit to include more specific allegations needed to prove its antitrust case.

KinderStart, a parent-focused directory and search engine, has brought suit against Google, alleging that the search engine giant has moved to drop competitor’s rankings on result pages, thereby running afoul of competition laws.

According to KinderStart’s complaint, the site has suffered a 70 percent drop in traffic as a result of Google’s alleged practice of moving competing sites further down on the results pages.

KinderStart claims to have been in the coveted first 10 results when it was first listed on Google. KinderStart also alleges an 80 percent decline in AdSense revenue from March 2005.

"What Google is trying to do is take out the competition," KinderStart’s attorney Gregory Yu told the judge.

According to CNET News reporter Dawn Kawamoto, who watched the hearing, KinderStart’s antitrust arguments “appeared to resonate with judge [Jeremy Fogel].”

Despite Fogel’s perceived sympathy, Google, which has faced lawsuits of this type before, appears on solid legal ground, having defeated similar claims by employing a 1st Amendment argument.

In effect, Google argued that it has a free speech right to list results as it sees fit, much like a critic or reviewer.

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

As for KinderStart’s own 1st Amendment argument, that Google had silenced its voice by pushing its ratings down, Fogel was less sympathetic, telling counsel for the company that he “just didn’t see it.”

Fogel also raised an additional hurdle for KinderStart, saying that he doubted the company’s ability to “plead around” the language in its contract with Google. The contract suggests that the search engine ranks sites as it sees fit, with no particular criteria spelled out.

For all of its legal obstacles, KinderStart refused to back down on one key issue: A high Google ranking is vital to any online business, the company argued.

The hearing to address the revised complaint as well as preliminary injunctive relief is set for Sept. 29.