SAN JOSE, California (Reuters) - A federal judge on Friday questioned whether Google Inc. defamed a small company by cutting it from its Web search ranking system or whether Google is free to choose which sites it features.
Judge Jeremy Fogel of the U.S. District Court for the Northern District of California heard arguments in a lawsuit by KinderStart.com LLC that seeks to challenge the fairness of how Google calculates the relative popularity of Web sites.
KinderStart, a Norwalk, Connecticut-based Web parenting site that features links to information about raising children, alleges violations of antitrust, free speech, unfair competition and defamation and libel laws in its suit.
Fogel said in opening comments that he was concerned attorneys for plaintiff KinderStart had not met the legal standard for defamation at the core of its complaint.
"I guess I am still not convinced ... that a provably false statement has been alleged," Fogel said during a court session on whether the suit should advance to the evidence discovery stage or be dismissed outright.
The judge asked whether Google has a free speech right to prioritize some sites over others in how it constructs computer formulas in its search system. "Assuming Google is saying that KinderStart's Web site isn't worth seeing. Why can't they say that? That's my question," Fogel said.
KinderStart argues the site's sudden demotion in March 2005 to a "zero" ranking in Google's search system has severely harmed its business. It seeks class action status on behalf of what is says are many other sites that have suffered the same fate as Google regularly fine-tunes its rankings.
"The fact that they (Google) have used a computer shouldn't affect whether it is defamatory," KinderStart counsel Gregory Yu said after the hearing.
"Using a computer to do that is a smoke screen," he said.
Fogel said he would take until at least the end of the year to render a formal ruling on whether the case should proceed or be dismissed, either with right of appeal or for all time.
"Judge Fogel's comments make it clear that he has read the papers very carefully," Hilary Ware, Google's senior litigation counsel, said. "We look forward to his ruling."
Apart from the basic way it counts the number of inbound links to any particular Web page, Google zealously defends the secrecy of the complex mathematical algorithms it uses to determine a site's ranking. Earlier this year, Google went to court to protect those trade secrets in a successful bid to limit a U.S. Justice Department request for search data.
Google maintains that such secrecy is necessary to prevent the manipulation of its search system to gain attention.
"This is a case that challenges Google's very right to operate," Google outside legal counsel David Kramer told the court. "It is not a case about KinderStart's free speech."
Copyright 2006 Ziff Davis Inc.
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