Court Again Rejects Lawsuit Over YouTube’s Allegedly Discriminatory Content Moderation–Divino v. YouTube

November 26, 2022 · by · in Content Regulation, Derivative Liability

LGBTQ+ content creators “claim that despite YouTube’s purported viewpoint neutrality, defendants have discriminated against them based on their sexual or gender orientation, identity, and/or viewpoints by censoring, demonetizing, or otherwise interfering with certain videos that plaintiffs uploaded to YouTube.” In 2021, the court dismissed the lawsuit with limited leave to amend. In response to those amendments, the court dismisses the case again. Much of the opinion reiterates the prior ruling.

California state constitution claim: “no court has extended the Pruneyard line of cases, which concern physical property, to the Internet.” If you’re still invoking Pruneyard analogies for online content moderation, I question your motives.

Unruh Act. “The parties do not dispute that the Unruh Act applies to a website that hosts videos posted by members of the public.” The court continues:

Plaintiffs’ allegations that defendants intentionally discriminated against them because of their sexual orientation in violation of the Unruh Act are very thin. They are also seemingly inconsistent with allegations indicating that not all of their videos are restricted or otherwise affected…Nevertheless, viewing the TAC’s allegations as a whole and in a light most favorable to plaintiffs, the Court finds that the allegations concerning the call center episode and allegations that plaintiffs’ videos are restricted or demonetized when allegedly similar non-LGBTQ+ content are not, together with allegations that some plaintiffs’ videos are restricted even when the content concerns innocuous subject matter like drinking tea, are sufficient under Rule 12(b)(6) standards to state a plausible claim for relief for violation of the Unruh Act.

Though the Unruh Act claim still fails due to 230, this has to be a chilling interim conclusion for defendants. Plaintiffs can ALWAYS find alleged inconsistencies or irregularities in content moderation because the datasets are huge and mistakes are inevitable. Courts need to reject selectively curated anecdotal evidence of inconsistencies in content moderation or plaintiffs can always make this showing.

Section 230

The plaintiffs claimed that YouTube’s TOS selected California law as the governing law, and doing so waived Section 230. Yes, that’s crazy, and no, that didn’t work. The court then applied the standard three-part test:

  • ICS Provider. Not disputed.
  • Publisher/Speaker Claims. “Each of plaintiffs’ claims arises from defendants’ activities that fall within a publisher’s traditional functions…The remaining Unruh Act and UCL claims in the TAC are based on defendants’ decisions to remove, restrict, or demonetize plaintiffs’ videos. For example, the Unruh Act claim seeks damages based on defendants’ demonetization of plaintiffs’ content and placing their videos in Restricted Mode. Similarly, the UCL claim is premised on defendants’ alleged unlawful or unfair restriction and demonetization of videos. Such conduct constitutes publishing functions under CDA Section 230.”
  • Third-Party Content. The court doesn’t make it explicit, but the moderated content (either from plaintiffs or other users) qualified as third-party content. The court added: “While the TAC alleges that defendants use algorithms to “review and regulate video content” they plead no facts demonstrating that those algorithms are themselves content or materially contribute to content.”

The court also says Section 230(c)(2)(B) protects YouTube’s Restricted Mode, citing Prager for the proposition that YouTube’s Restricted Mode is exactly the kind of self-regulation Congress sought to protect.

The court again rejects an argument that Section 230 is unconstitutional. Much of that rehashes the prior ruling, but the court adds: “To the extent the TAC suggests that defendants’ invocation of CDA Section 230(c) as a defense violates plaintiffs’ First Amendment right to “petition[ ] the courts for relief,” plaintiffs have not been precluded from presenting their legal disputes to the courts, “express[ing] their ideas, hopes, and concerns to their government,” or from “request[ing] action by the government to address those concerns.””

I’m glad the court dismissed this case again, but the good news may be short lived. Texas and Florida have created causes of action to cover precisely the situation complained about here, and the Fifth Circuit has upheld the Texas law. Now we wait to see if the Supreme Court will MAGA the Internet.

Case citation: Divino Group, LLC v. Google, LLC, 2022 WL 4625076 (N.D. Cal. Sept. 30, 2022). Since that ruling, the plaintiffs have filed a fourth amended complaint (as the court permitted, but only with respect to the implied covenant of good faith and fair dealing claim) and a request to reconsider the Section 230 ruling in light of the MAGAlicious Henderson v. Source for Public Data ruling.