[co-author: Alexander Kwonji Rosenberg ]
As we have noted previously, YouTube users sometimes object when the online video giant removes their videos based on terms-of-use violations, such as artificially inflated view counts. In a recent California case, Bartholomew v. YouTube, LLC, the court rejected a user’s claim that the statement YouTube posted after it removed her video, which allegedly gave the impression that the video contained offensive content, was defamatory.
Joyce Bartholomew is a musician who creates what she calls “original Christian ministry music.” Ms. Bartholomew produced a video for the song “What Was Your Name” and posted the video on YouTube in January 2014. YouTube assigned a URL to the video, which Ms. Bartholomew began sharing with her listeners and viewers. By April 2014, she claims that the video had amassed over 30,000 views.
Shortly afterwards, however, YouTube removed the video and replaced it with the image of a “distressed face” and the following removal statement: “This video has been removed because its content violated YouTube’s Terms of Service.” The removal statement also provided a hyperlink to YouTube’s “Community Guideline Tips,” which identifies 10 categories of prohibited content: “Sex and Nudity,” “Hate Speech,” “Shocking and Disgusting,” “Dangerous Illegal Acts,” “Children,” “Copyright,” “Privacy,” “Harassment,” “Impersonation” and “Threats.”
In an exchange between Ms. Bartholomew’s counsel and YouTube, it emerged that YouTube had removed the video because Ms. Bartholomew’s account had violated Paragraph 4(H) of YouTube’s terms of service, which bans the use of automated systems such as “robots” or “spiders” that send “more request messages to the YouTube servers in a given period of time [than] a human can reasonably produce in the same period by using a conventional on-line Web browser.” In other words, YouTube alleged, Ms. Bartholomew had artificially inflated the view count for her video.
Ms. Bartholomew sued YouTube for libel based on the removal statement and the hyperlink to the Community Guideline Tips, which she argued had harmed her reputation by implying a “want of character” based on the featured prohibited categories such as sex, nudity, hate speech, etc. YouTube filed a demurrer. The trial court ruled that the removal statement was not libelous, and that the Community Guideline Tips page did not defame Ms. Bartholomew because some of the categories mentioned, such as “Children,” “Copyright” and “Privacy,” do not necessarily suggest offensive conduct. Ms. Bartholomew appealed, arguing that the trial court’s conclusions were erroneous and that both the removal statement and the Community Guideline Tips were defamatory.
The California Court of Appeals examined the hyperlink in YouTube’s removal statement, which led to the Community Guideline Tips page. Some of these statements, the court noted, if they were sufficiently directed at Ms. Bartholomew, could constitute libel. However, Ms. Bartholomew had failed to allege “how the hyperlink could be viewed as defaming her personally.” Hyperlinks can be used in many different ways, including providing the viewer with more or less specific information about the subject being discussed on the originating page.
Here, the court observed, the Community Guidelines Tips page provided “information more general” than was available on the originating page. An Internet user with a “reasonable working knowledge” of how Internet hyperlinks work would have understood that “no one particular offense could be reasonably read to apply to Bartholomew’s video and that the categories applied to the many thousands of videos that YouTube might have had to remove for any number of reasons.” Given the generality of the Community Guidelines Tips page, the court observed that Ms. Bartholomew had provided “no theory as to how the generalized statements on the Community Guideline Tips page were ever ascribed in any particular way to her.”
The court also examined YouTube’s removal statement standing on its own – i.e., the statement “This video has been removed because its content violated YouTube’s Terms of Service.” The removal statement alleges that Ms. Bartholomew breached the Terms of Services, but a statement alleging a breach of contract is not defamatory per se. To support a defamation claim based on such a statement, the plaintiff must demonstrate that the statement is defamatory by “innuendo” or under a certain reading of the statement, supported by extrinsic facts.
Citing its own precedent, the court held that Ms. Bartholomew had failed to make such a demonstration. Given the breadth of items covered in YouTube’s terms of service, which includes three pages of single-spaced, fine print and a privacy policy, the Court held that the removal statement on its own did not subject Ms. Bartholomew to “hatred, contempt, ridicule, or obloquy” or tend to “injure [her] in [her] occupation.”
On November 21, 2017, YouTube cited Bartholomew to defend against similar claims in a three-year-old libel suit, Song Fi Inc. v. Google Inc. Much like Ms. Bartholomew, plaintiffs Song Fi and Rasta Rock Opera claimed that Google and YouTube damaged their reputation when YouTube removed their video and posted the removal statement, implying that the video contained improper content.
But, in its summary judgment motion in Song Fi, Google argues “Ms. Bartholomew held that the notice, whether on its own or combined with the guidelines, was not capable of conveying a defamatory meaning and was not a statement ‘of and concerning’ the plaintiff.” The Song Fi court denied Google’s motion to dismiss the plaintiffs’ defamation claim in 2016, but we will be watching closely to see how the court rules on YouTube’s summary judgment motion in light of Bartholomew.
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