Ninth Circuit Rejects Another Lawsuit Over Account Termination–Mercola v. YouTube
I previously described this case:
Joseph Mercola ran a YouTube channel with 300k subscribers and 50M views. YouTube removed the channel for violating its medical misinformation policy (Mercola apparently peddled anti-vax views). Mercola sued YouTube for the usual things and got the usual outcomes.
By the time the case reached the Ninth Circuit, the case had narrowed quite a bit. In the appeal, Mercola claimed that termination of his account violated the TOS’s provision that YouTube must provide reasonable advance notice of changed terms. But YouTube’s TOS said that it could remove content whenever it wanted, so it’s not like YouTube changed its TOS or its existing discretion enforcement powers. The Ninth Circuit says that Mercola’s strained reading of the TOS was “not plausible.” Plus:
to construe the Modification Clause to prohibit the immediate termination of an account that causes harm to others would be contrary to protecting the public. In September 2021, when YouTube terminated Mercola’s account, it was reasonable (even if incorrect) to consider “anti-vaccine” postings to be harmful to the public.
This is a non-precedential memo opinion, so I’m going to assume that the reference to “incorrect” was sloppily phrased and instead intended as a hypothetical (i.e., even if YouTube was incorrect)–and not as a declaration that it’s official Ninth Circuit policy that anti-vax postings do not harm the public (of course they do).
In an effort to salvage his case, Mercola claimed the only remedy he wanted was access to the deleted videos. The court doesn’t give him that because YouTube didn’t breach the TOS, so he’s not entitled to any remedies.
Mercola made a last-ditch unconscionability argument, which the panel rejects because (among other problems) “Mercola, an incorporated entity, contracted with
YouTube for a non-essential service, the language in the contract is not overly
technical, and it appears that for the most part Mercola received the benefit of its
bargain.”
Another failed case added to the ever growing stack of failed cases over account terminations and content removals.
Case Citation: Mercola.com, LLC v. Google LLC, 2024 WL 2745208 (9th Cir. May 29, 2024)