Google Defeats Account Termination Case on Section 230 Grounds (Mostly)–Enhanced Athlete v. YouTube

This is another account termination case. The plaintiff ran two YouTube channels with 145k subscribers. The opinion implies that the channels hyped a steroid-like supplement not approved by the FDA (“SARMS”). As usual with cases in this genre, the plaintiff claimed that YouTube acquiesced to these videos until it capriciously changed its mind, at which point it improperly nuked the channels. Thus, the plaintiff sued “to stop Defendants from unlawfully censoring its educational and informational videos, and discriminating against its right to freedom of speech, for arbitrary and capricious reasons that are contrary to Defendants’ own published Community Guidelines and Terms of Use.” (Obligatory notes about the plaintiff’s unfortunate misunderstandings of what “censorship” and the “right to freedom of speech” mean). The court grants YouTube’s motion to dismiss.

Section 230

For the most part, this is an easy Section 230(c)(1) dismissal. The court uses the standard three-part test:

ICS Provider: Plaintiff didn’t contest this, “nor could it.” “YouTube and Google readily fall within this definition.”

Third-Party Content: Following the Sikhs for Justice case, the court says that the plaintiff’s videos are third-party content to YouTube.

Publisher/Speaker Claims: “Plaintiff challenges Defendants’ decision to remove Plaintiff’s videos and terminate its accounts. Yet ‘removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher.'” (cite to Barnes). This wipes away the 17200 unfair competition claim and the Lanham Act false advertising claim (no cite to the 9th Circuit’s Enigma v Malwarebytes ruling, though it is directly on point regarding Section 230’s application to Lanham Act false advertising).

However, the court–continuing to follow the Barnes case–says that the plaintiff’s implied covenant of good faith and fair dealing claim “is premised on Defendants’ interference with the parties’ agreement.” Thus, citing Darnaa v. Google, “a breach of implied covenant claim, because it is based in contract rather than a defendant’s status as a publisher, is not barred by Section 230(c)(1).” UGH. The Barnes case created a Section 230(c)(1) exception for promissory estoppel, but some courts have interpreted this to exclude all contract or contract-like claims. See, e.g., the recent New Hampshire Supreme Court ruling in Teatotaller v. Instagram, which said that “specific promises” in TOSes (whatever that means) are outside Section 230(c)(1). On the other hand, a number of cases have expressly held that Section 230(c)(1) applies to the implied covenant of good faith and fair dealing, including Lewis v. YouTube and FAN v. Facebook.

So there may be a split of opinion on whether Section 230(c)(1) applies to claims for breach of the implied covenant of good faith and fair dealing. If this claim successfully pleads around Section 230(c)(1), it’s unfortunate because it’s never going to succeed in the end. Every TOS expressly says that the service can terminate content or accounts as it sees fit, and the implied covenant can’t override that. So this is another example where giving a Section 230(c)(1) fast lane to reach that inevitable result would make everyone better off.

At this point in the opinion, the only remaining claim is the implied covenant of good faith and fair dealing, so the court evaluates other defenses to that claim.

Section 230(c)(2)

As the court summarizes, “Section 230(c)(2)…provides immunity to defendants to ‘police content,’ provided they do so in good faith.” The plaintiff cited various (unpersuasive) reasons why YouTube’s account termination wasn’t in good faith, and the court says it must accept those allegations as true on a motion to dismiss. Another example of why Section 230(c)(1) has vastly outpaced Section 230(c)(2) in importance.

Merits of the Implied Covenant of Good Faith and Fair Dealing Claim

Once we reach the merits of the good faith/fair dealing claim, the court has no problem trashing it (citing Song Fi v. Google):

[Per YouTube’s TOS,] Defendants have the right “to decide whether Content violates th[e] Terms of Service,” and “at any time, without prior notice and in [their] sole discretion, [to] remove such Content and/or terminate a user’s account for submitting such material in violation of these Terms of Service.” Defendants may also “discontinue any aspect of the Service at any time.” The Community Guidelines, in turn, state that “[v]ideos showing [] harmful or dangerous acts may get age-restricted or removed depending on their severity.” By the terms of these agreements, therefore, Defendants have “sole discretion” to determine whether Plaintiff’s videos were harmful or dangerous, or otherwise violated the Terms of Use and Community Guidelines, and to “discontinue” service “at any time.” That Plaintiff may have disagreed with their reasoning, or lost revenue as a result, is simply inapposite

Still, the court dismisses the claim without prejudice, giving the plaintiff one more chance to rally in support of this claim. That is guaranteed to fail, but the plaintiff will try anyways, and then appeal its loss to the Ninth Circuit.

Case Citation: Enhanced Athlete, Inc. v. Google LLC, 2020 WL 4732209 (N.D. Cal. Aug. 14, 2020)