A prominent anti-vaccine activist, Joseph Mercola, yesterday lost a lawsuit attempting to force YouTube to provide access to videos that were removed from the platform after YouTube banned his channels.

Mercola had tried to argue that YouTube owed him more than $75,000 in damages for breaching its own user contract and denying him access to his videos. However, in an order dismissing Mercola’s complaint, US magistrate judge Laurel Beeler wrote that according to the contract Mercola signed, YouTube was “under no obligation to host” Mercola’s content after terminating his channel in 2021 “for violating YouTube’s Community Guidelines by posting medical misinformation about COVID-19 and vaccines.”

“The court found no breach because ‘there is no provision in the Terms of Service that requires YouTube to maintain particular content’ or be a ‘storage site for users’ content,'” Beeler wrote.

Because Mercola’s contract with YouTube was found to be enforceable and “YouTube had the discretion to take down content that harmed its users,” Beeler said that Mercola did not plausibly plead claims for breach of contract or unjust enrichment.

Mercola’s complaint was dismissed without leave to amend.

Ars could not immediately reach Google or Mercola for comment.

Mercola’s losing arguments against YouTube

In his complaint, Mercola described himself as “a board-certified physician and leader in the field of natural health” who “was an early user of YouTube and began sharing video content in or around 2005, the year YouTube was founded.”

Over time, Mercola amassed 300,000 subscribers to a YouTube channel that “garnered 50 million views” by boosting professionally made videos that linked to his website, “which promotes natural health and provides health articles, optimal wellness products, medical news, and a free newsletter.”

Researchers and regulators described Mercola’s background to The New York Times a little differently. They claimed that he was at one point the “most influential spreader of coronavirus misinformation” and profited “from misleading claims about Covid-19 vaccines.”

But Mercola said that YouTube never sent him any notices that his content was out of line with the video platform’s community guidelines. He also claimed that after YouTube updated its policy to prevent COVID-19 misinformation, he “carefully avoided posting any content that mentioned Covid-19 vaccines or discussed the Covid-19 outbreak in a manner that YouTube might determine was out of line with official government positions on Covid-19.”

Mercola claimed that he first became aware that YouTube was planning to ban his channel when The Washington Post published an article about it. He told the Post that he was being censored. In his complaint, he said that within six minutes of the Post’s article publishing, he got a message that his channels were banned, effective immediately, for violating YouTube’s new policy on vaccine misinformation.

His attempt to appeal YouTube’s decision was denied, according to Beeler’s order. At that point, YouTube told Mercola that after reviewing his channel “carefully,” YouTube “confirmed that it violates our Community Guidelines.”

“We won’t be putting your channel back up on YouTube,” the email said.

With no other option to fight back, Mercola sued, alleging that YouTube had failed to provide “advance notice of the vaccine-misinformation policy before terminating the channel and account,” warn Mercola of the termination or act fairly and in good faith. He also claimed that YouTube failed to give him access to his content, which he claimed that YouTube’s terms of use required. Finally, he said that YouTube had been unjustly enriched for retaining his content and converting it exclusively to YouTube’s use.

Beeler rejected all these arguments, agreeing with YouTube that there was no breach of contract, no damages should be awarded, and Section 230 of the Communications Decency Act barred Mercola’s claims.

“YouTube had the discretion to terminate channels without warning after a single case of severe abuse,” Beeler wrote. “Under the contract, this determination was discretionary: the contract said that ‘[i]f we reasonably believe that any Content is in breach of this agreement or may cause harm… we may remove or take down that Content in our discretion.'”

Commenting on Mercola’s case, legal expert Eric Goldman wrote: “Lawsuits over content removals never succeed.”

https://arstechnica.com/?p=1965538