Freethinker v. Google LLC

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LADY FREETHINKER Plaintiff and Appellant, v. GOOGLE LLC, Defendant and Respondent.

H050875

California Court of Appeals, Sixth District

June 3, 2024

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. 21CV390154)

Wilson, J.

YouTube requires its users to accept and agree to comply with its terms of service as a condition of using the website. Those terms of service provide, among other things, that YouTube will not allow videos depicting animal abuse to be shown on its platform. Despite those terms, some animal abuse videos have appeared on YouTube.

Plaintiff and appellant Lady Freethinker, a nonprofit organization contends that by accepting the terms of service to use YouTube, it entered into a contract with YouTube's parent company, Google LLC, which breached the contract and violated other state laws by allowing the animal abuse videos to be shown.

Google successfully demurred on the ground that Lady Freethinker's claims are barred by the Communications Decency Act of 1996, 47 U.S.C. § 230 (section 230) which provides immunity to interactive computer services that a plaintiff seeks to treat as a publisher or speaker of information from another content provider.

On appeal, Lady Freethinker contends that section 230 does not bar its claims because Google's liability derives from its contractual obligations rather than from its actions as a publisher or speaker of third-party information. We conclude that, although Lady Freethinker frames its causes of action as contract-based, ultimately those claims seek to treat Google as a publisher or speaker of third-party information and are therefore barred by section 230. We affirm.

I. Factual and Procedural Background^[1]

A. The alleged contract 1. YouTube's alleged promises

YouTube is an internet-based video sharing service and a wholly owned subsidiary of Google LLC. Google and YouTube are the first and second-most visited websites in the world, respectively, according to one source cited by Lady Freethinker.

Users may access, upload and view videos on YouTube only if they accept and agree to comply with YouTube's and Google's terms of service and community guidelines. In exchange, Lady Freethinker alleges, YouTube and Google make certain promises on which their users rely when accepting those terms. Among other things, they promise that they will not allow animal abuse, torture, or cruelty videos to be shown on the YouTube platform.

YouTube's community guidelines specify what type of content is not allowed on its platform, which entails various content "including videos, comments, likes and thumbnails." YouTube states that its community guidelines "are a key part of our broader suite of policies and are regularly updated in consultation with outside experts and YouTube creators to keep pace with emerging challenges."

The community guidelines claim that "[v]iolent or gory content intended to shock or disgust viewers, or content encouraging others to commit violent acts, are not allowed on YouTube." The guidelines also include a "violent or graphic content policies" section with an "animal abuse" subpart. They define "animal abuse" as referring to "content that shows the malicious infliction of serious physical or psychological harm that causes an animal to suffer."

Specific examples of this type of disallowed content include "[c]ontent that shows animal suffering, neglect, or mistreatment to shock the viewer or glorify the abuse, and doesn't give enough educational, documentary, scientific, or artistic context," and "[t]he staged rescue of animals where the animals are intentionally harmed or placed in dangerous scenarios for dramatic effect."

In addition to the policies prohibiting such content, Lady Freethinker alleges, YouTube promises its users that it employs "a combination of human reviewers and machine learning" and consults with outside experts to ensure compliance.

2. Lady Freethinker's alleged acceptance

Lady Freethinker is a registered 501(c)(3) nonprofit organization founded in 2015.^[2] It alleges that YouTube's stated policies and promises of a platform free of animal abuse content enticed Lady Freethinker to accept and agree to YouTube's terms of service and join the platform. YouTube offered that platform with explicit promises that animal abuse content would not be allowed, and Lady Freethinker accepted the offer and joined the website. Consideration was provided in the form of Lady Freethinker's use of the website, adherence to YouTube and Google's rules, and bringing in donors and followers to the YouTube platform. In agreeing to participate on YouTube's platform, Lady Freethinker allegedly relied on YouTube's and Google's promises and believed that they meant what they said and were truthful in their representations.

B. Animal abuse videos-the alleged breach

Despite its promises, YouTube has allowed or failed to remove some videos displaying explicit animal abuse, suffering and torture. Lady Freethinker has identified more than 100 YouTube channels "with tens of millions of subscribers, and more than 2,000 videos with over a billion 'views' of animal abuse, torture, and cruelty of the type YouTube expressly promises will not appear on its platform."

The animal abuse videos shown on YouTube include "forced predatory interactions in which young animals are purposely tortured, harmed, or killed, as well as staged 'rescues' where animals are intentionally put into dangerous conditions... only so the video can look like the animal is saved from near death by the very persons that put them in harm's way." Other animal abuse videos show "animal suffering, neglect, or mistreatment clearly intended to shock the viewer or glorify the abuse - including the depraved torture of baby monkeys by hacking them apart with machetes and putting them in blenders."

C. Complaints and demurrers

Lady Freethinker filed the initial complaint in this action in Santa Clara County Superior Court on October 18, 2021, alleging breach of contract and related causes of action against Google. Google demurred on the grounds that section 230 barred the claims and that they otherwise failed to state facts sufficient to constitute causes of action.

The trial court sustained the demurrer on section 230 grounds and granted leave to amend. Specifically, the court held that, although Lady Freethinker's causes of action were styled as claims for breach of contract and negligent misrepresentation, they actually treated Google as a publisher and sought to hold it liable for harmful third-party content. According to the trial court, section 230 provides that" '[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section,'" yet that was exactly was Lady Freethinker sought to do.

Lady Freethinker then filed the operative first amended complaint on August 29, 2022 (complaint). The complaint sets forth the factual allegations summarized above, and asserts four causes of action: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) violation of California Business and Professions Code, section 17500, the False Advertising Law, and (4) violation of California Business and Professions Code, section 17200, the Unfair Competition Law (UCL).

The breach of contract action alleges that YouTube and Google's offer, and Lady Freethinker's acceptance of the offer pursuant to the terms of service and community guidelines, constituted a contract that Google breached by allowing the animal abuse videos to be seen on YouTube, which damaged Lady Freethinker reputationally and financially as a result.

Google demurred again on the same grounds.

The trial court once again sustained the demurrer on section 230 immunity grounds, this time without leave to amend. The court explained that, despite the amendments to the complaint, the substance of the claims remained the same: Google failed to prevent animal abuse videos from being shown on YouTube, in violation of its own terms of service and community guidelines. Relying chiefly on Cross v. Facebook (2017) 14 Cal.App.5th 190, 207 (Cross), and Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12 (Murphy), the trial court held that Lady Freethinker's claims still treated Google as a publisher or speaker of information provided by another information content provider. Ultimately, the court explained, the source of Lady Freethinker's alleged injuries-the basis for its claim-is the content of the videos and Google's failure to remove them. Accordingly, section 230 bars the complaint.

Judgment of dismissal was entered on January 24, 2023. Lady Freethinker timely appealed.

II. Discussion

Lady Freethinker argues that the complaint alleges clear breach of contract and related causes of action, which derive from contractual obligations rather than from YouTube's or Google's conduct as a speaker or publisher of third-party content. Accordingly, it argues, the claims are not barred by section 230. In addition, Lady Freethinker contends that its causes of action sufficiently state claims for relief.

Google argues that the alleged "promises" cited by Lady Freethinker were not actually promises, but instead merely "content policies" which existing precedent has recognized as "insufficient to justify an exception to section 230 immunity." Creative pleading cannot defeat the broad scope of section 230, it argues, and YouTube cannot be held liable for failing to exclude offensive third-party content from its platform. Lastly, Google argues that, even if section 230 does not bar Lady Freethinker's claims, they fail to state cognizable causes of action.

A. Applicable law and standard of review

"When reviewing a ruling on a demurrer, ...