Lexology | YouTube Restricts Content Unfairly,Says Prager U

Old Fake News

Internet technology has slowly grown to rival and in some cases supplant traditional broadcast news sources. In the wake of this sea change, long-established certitudes about the role played by media providers are being questioned and reshaped online.

For instance, online video has been enormously disruptive. Vast amounts of content are uploaded daily, and the audience for this material is staggering. This content is often produced by original broadcast channels, but more often than not it is produced by upstart media companies or individual users. As a result, online video forums and the companies that own and operate them are coming under increasing scrutiny for exactly how they present (or obscure) this content.

Prager for Relief

Prager University, “a 501(c)(3) educational nonprofit digital media organization founded by radio talk show host Dennis Prager,” took aim at the largest of these operators – YouTube and its parent company, Google – in a lawsuit recently filed in the Northern District of California. In the suit, Prager University (PragerU), claimed that the companies were censoring its videos because of their conservative political content.

This censorship, which the organization alleges has been in place since mid-2016, took forms unique to YouTube. PragerU claims that YouTube “demonetized” some of the videos on its channel by removing ads from the videos and keeping them from earning revenue. It also claimed that YouTube placed some of its videos under “restricted mode,” which normally is used to shield users from seeing “inappropriate” content. The complaint also alleged Google/YouTube used these arbitrary and capricious “restricted mode” and “demonetization” filters to prohibit or limit access of “inappropriate” content to prospective public viewers “based on certain viewer characteristics, including the age of the viewer.”

At the heart of PragerU’s complaint is a list of videos from other YouTube channels discussing the same subjects as PragerU’s restricted content – but which suffer no restriction at all. These other channels are owned by organizations or individuals with different political viewpoints than those of PragerU.

The Takeaway

The suit alleges free-speech violations under the California and U.S. Constitutions and violations of the California Unruh Civil Rights Act, the California Business and Professions Code, and the Lanham Act. The suit also alleges a claim of breach of implied covenant of good faith and fair dealing against Google/YouTube based on Google/YouTube’s unfettered control over “every aspect of their relationship” with PragerU.

The suit seeks a declaratory judgment that the free-speech violations occurred, and an injunction requiring YouTube to stop restricting PragerU’s content and to stop censoring its speech based on arbitrary criteria, plus damages and costs.

Two aspects of the case are especially interesting. The free-speech counts rely on U.S. Supreme Court and California Supreme Court decisions that maintain that the right to free speech can apply on private property – the property, in this case, being YouTube’s servers, which host “one of the largest internet forums for speech and expression in the history of the world … accessible to and freely used by the public in general.” Based on the importance of cyberspace in modern society, the complaint alleged users engage in “a wide array of protected First Amendment activity on any number of diverse topics” through social media, thereby bringing the complaint within the scope of the First Amendment.

The complaint’s interpretation of the Lanham Act is also interesting; the suit avers that YouTube’s policies misrepresent the site as “an open marketplace of ideas and expression,” while simultaneously costing PragerU “lost income, reduced viewership, and damage to brand, reputation, and goodwill.” Importantly, the complaint alleges YouTube took these wrongful actions with oppression, fraud and/or malice, and although PragerU repeatedly tried to remedy the situation, YouTube/Google repeatedly refused to unrestrict the videos.

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