• by Wendy Davis , April 3, 2012

The Attorney General of Ohio is asking a state appeals court to reject arguments put forward by Google in an antitrust case brought by shopping search company myTriggers, a former AdWords advertiser.

In a friend-of-the-court brief filed last week, Ohio's top law enforcement official urged the appellate court to officially disagree with Google's contention that the federal law Act protects the company from antitrust liability based on which search results it displays. Accepting that position "would immunize an entire industry from the operation of this state's antitrust laws," Mike DeWine argues.

The litigation stems from a lawsuit initially filed in state court in Columbus by Google against shopping search company myTriggers for allegedly failing to pay $335,000 in search marketing fees. myTriggers filed a counterclaim alleging that its quality score was wrongfully dropped by Google, resulting in a 10,000% increase in the cost of search ads.

myTriggers alleged that Google did so for anticompetitive reasons. But it emerged in the course of litigation that myTriggers previously said in an insurance claim that server crashes spurred Google to raise prices.

Judge John Bessey in Franklin County threw out myTriggers' lawsuit last year, ruling that the company didn't sufficiently allege that Google acted anti-competitively.

But while Bessey ultimately ruled in favor of Google, he also disagreed with the company about whether federal law immunizes it from liability for decisions about which search results are displayed.

myTriggers appealed Bessey's ruling, arguing that the case shouldn't have been thrown out. Google, although it won the case, is now asking the appellate court to rule that Bessey should have said that the company's actions were protected by the federal Communications Decency Act.

Among other provisions, the Communications Decency Act's "good samaritan" provisions say that companies aren't liable for taking steps to remove potentially objectionable content. Google argues that its actions as a publisher -- including lowering companies' quality scores -- are the type of activity that's protected by the statute. "In applying its advertising quality standards and search algorithms to my Triggers' content, Google was acting voluntarily to restrict the availability of material that it considered objectionable," the company argues in its appeal.

But the Ohio attorney general argues that the good samaritan provisions only apply when companies remove material for a narrow range of reasons, such as because it's obscene, lewd, violent or harassing. "Google's assertion that the immunity provision must be interpreted broadly is plainly foreclosed," the Attorney General argues.

A ruling against Google on this issue could influence other cases, but won't necessarily change the outcome in myTriggers' lawsuit. That's because even if the appellate court agrees with the state Attorney General, that court could still find that Bessey correctly dismissed the case on the ground that myTriggers didn't adequately allege an antitrust violation.