YouTube Isn’t Liable for User Uploads of Animal Abuse Videos–Lady Freethinker v. YouTube

YouTube’s TOS restricts the uploading of content depicting animal abuse, defined as “content that shows the malicious infliction of serious physical or psychological harm that causes an animal to suffer.” The TOS provides additional details about what YouTube considers impermissible animal abuse.

Lady Freethinker is an animal rights advocacy group with the tagline “ending cruelty for all beings.” It claims that it created a YouTube account predicated on YouTube promising to curb animal abuse content. Nevertheless, such content can be easily found on YouTube. Thus, Lady Freethinker sued YouTube for breach of contract and related claims.

(A reminder that I’ve been a vegetarian for 40 years and a vegan for a decade-plus, so I’m normatively sympathetic to Lady Freethinker’s cause. But not at the expense of Section 230!)

If you’re relatively new to Internet Law, Lady Freethinker’s arguments may sound like a clever legal approach. If YouTube goes out of its way to expressly ban animal abuse in its TOS, shouldn’t it be liable for not enforcing that self-adopted ban? However, if you’re an old-timer like me, you’ll recognize how this exact argument was tried–and failed–in Noah v. AOL from 2003, a case I still include in my Internet Law casebook. (Same thing with the Lori Drew prosecution from 2009). The underlying legal principles are not complicated: content rules in TOSes are negative behavioral restrictions on authors’ conduct, not marketing or contractual promises to readers that such content will never appear on the site. It was an easy dismissal in Noah, and it remains an easy dismissal now. (I’m ignoring the complicating effects of various social media censorship laws that may require Internet services to enforce their TOSes as written, a requirement I think is unconstitutional).

Rather than engaging this contract law issue directly, the court rules for YouTube on Section 230 grounds:

Lady Freethinker’s claims ultimately seek to treat Google as the publisher or speaker of content provided by another information content provider. Both the breach of contract and breach of implied covenant of good faith and fair dealing causes of action, for instance, are predicated on YouTube “allowing hundreds of animal abuse videos.” Similarly, the causes of action for violation of the False Advertising Law and the Unfair Competition Law are premised, respectively, on Google’s “false misrepresentation that it would not allow animal abuse videos,” and its “fraudulent business acts or practices by deceptively advertising and holding out its platform as one where extreme and gratuitous animal abuse will not be allowed.”

Google’s actions allowing the animal abuse videos to be shown on YouTube thus fall squarely within the scope of a publisher’s traditional editorial functions—deciding whether to publish, withdraw, postpone or alter content….Google’s actions in allowing the animal abuse videos to be shown and failing to remove them amount to publishing decisions not to prevent or remove the videos—that is, “ ‘deciding whether to exclude material that third parties seek to post online.’ ”

To get around this, Lady Freethinker argued that Section 230 doesn’t apply to contract breach claims. Indeed, the court agrees that “section 230 does not necessarily provide immunity for all contract-based causes of action.” Discussing the Ninth Circuit’s ruling in Barnes, the court says “numerous courts have recognized the limited scope of its holding on this issue and have rejected attempts to evade section 230 liability by asserting distinguishable contract-based causes of action.” [Discussing Cross v. Facebook, Murphy v. Twitter, Prager v. YouTube, and Wozniak v. YouTube]

Thus, styling a claim as “breach of contract” doesn’t automatically get around Section 230:

merely because a cause of action is framed and labeled as a breach of contract or related claim does not remove it from the scope of section 230 immunity. Instead, a court must evaluate a cause of action to determine whether it seeks to treat an interactive computer service as a publisher or speaker of third-party information. That may include assessing what a plaintiff’s claim “amounts to” or identifying the gravamen of a complaint and the nature of the alleged injurious conduct, notwithstanding the plaintiff’s labels and characterization of its own causes of action. It may also include assessing the sufficiency of a cause of action as pleaded from a contract standpoint, including whether it is based on general policies or a personal, well-defined, enforceable promise

The court says that Cross and Murphy govern this case:

In all three cases, the breach of contract claims alleged that the defendants failed to comply with their own general terms of service, but the claims ultimately were predicated on traditional editorial decisions regarding third-party content…. here, YouTube’s and Google’s failure to prevent and remove the animal abuse videos allegedly violated their terms of service and community guidelines.

In all three cases, the defendants’ actions that gave rise to the allegedly injurious behavior constituted traditional editorial functions such as deciding whether to publish, withdraw, postpone or alter content, the kind barred by section 230

As a last-ditch argument, Lady Freethinker argued that a permissive interpretation of Section 230 would allow YouTube…to be YouTube?

Lady Freethinker argues that finding section 230 immunity here would effectively provide YouTube “blanket immunity just for being YouTube—just because the nature of its business is bound up with content posted on the internet.”

This sounds like a pretty good argument in favor of Section 230!

* * *

This case was filed in October 2021, before the latest flood of complaints urging Section 230 workarounds for negligent design claims. It’s not hard to imagine how a negligent design claim could have been structured here. First, the plaintiff could have argued that YouTube’s design encourages the production and viewing of illegal animal abuse videos. Second, the plaintiff could have alleged that YouTube’s design exposes viewers to illegal content that causes emotional and mental distress to animal rights activist viewers. Note how these recapitulations are the same basic arguments that Lady Freethinker tried, just framed in a tort way rather than a contract way. So a negligent design workaround to Section 230 would clearly authorize cases that we think today are preempted.

To be clear, I don’t think either argument should work, but it would have had more modern resonance than the breach of contract workaround to Section 230, which after Murphy really never had any real chance of success. Because the plaintiff in this case came in with an old-school legal theory that got swatted down as expected, I fear this possibly will be one of the last great Section 230 opinions from the California Appeals Court. Going forward, it’s going to be negligent design workarounds all the time, with the possibility that those arguments succeed and Section 230 becomes functionally a dead-letter.

Case citation: Freethinker v. Google LLC, 2024 WL 2809371 (Cal. App. Ct. June 3, 2024)