In 2004, back when Internet Poker was much more in the clear in the United States, two citizens of California filed a lawsuit against some of the usual advertising suspects. The suit specifically named 13 defendants including Yahoo!, Google, CNET Networks, Jupitermedia and more, and about 100 “John Doe” defendants. The suit was brought forward by California residents Mario Cisneros and Micheal Voight; the former claimed never to have participated in internet gambling prior to the suit while the latter allegedly lost more than $100,000 gambling online. The object of this suit was to hold the advertising media liable for the plaintiffs’ losses, and to forbid the defendants from “participating in, and continuing to market, sell, and display advertising for illegal Internet Gambling establishments.”
This case came to be known as the California Gambling Advertising Suit. The factual background of the suit alleged all the standard woes that could be alleged by someone who does not understand (or deliberately tries not to understand) Internet gambling, like “Internet gambling preys on seniors, noting that it’s harder for seniors to recover after a loss” and “Internet gambling is illegal under California law.” But there also was, prominently featured, an alleged violation of the California Unfair Competition Law (”UCL”) Section 17200.
But back then, Common Sense tm already made its move, by denying the plaintiffs request for monetary damages. The courts stated that in the case of an eventual win, all they could get was an injunction. It should be understandable to everyone who has a bit of Common Sense tm, that if you gamble you could either win or lose money. That is why gambling is risk vs. reward. It could be argued that if Mr. Voight would not have lost, but instead won money, this lawsuit would never have happened in the first place.
And last week, Common Sense tm hit Greed tm with a final blow: Judge Richard Kramer from the San Francisco Supreme Court declared Google, Yahoo, and all the other plaintiffs in this case “immune from liability” and all charges were dropped. This was based on the Federal Communications Decency act of 1996, section 230, which according to Wikipedia states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. Effectively, this section immunizes ISPs and other service providers from torts committed by users over their systems, even if the provider fails to take action after actual notice.
Noting that the defendant companies have all stopped accepting gambling advertisements in the US long ago, Judge Kramer stated, “Without comment on whether defendants’ sponsoring online gambling sites in the past was wrongful, it is clear from the evidence that each defendant has ceased such sponsorship,” ruling against the possible injunction.
The plaintiffs, obviously not wanting to quit their nonsense, then argued that some gambling ads were still occasionally featured on the defendants websites. Again Judge Kramer judiciously used Common Sense tm and promptly dismissed their claim by stating, “It is likely not possible for the defendants to avoid the posting of every online gambling site. Once a site is posted, it will exist for some period of time despite defendant’s persistent search and destroy practices.”
The ruling in San Francisco has cleared the defendants in this case, which were the sites on which the ads were posted. What is still unclear is if the advertisers themselves (i.e. those who made the ads) are liable for prosecution.
Some could argue that Common Sense tm could have acted earlier and summoned the dormant Commerce Clause. A number of state laws that attempted to regulate content or transactions on the Internet have been struck down on commerce clause grounds, but as unbelievable as it may seem, it has not been applied in any cases involving Internet gambling. This clause would also be very applicable to the current situation in Kentucky. But for now, all we can hope is that people who use Common Sense tm, especially when they are needed in things that are sensitive and can affect a lot of people like Law and Internet Gambling, become the norm rather than the exception.