A group of content creators sued Google in 2020, alleging YouTube’s “restricted mode” settings, which allow users to screen out content that has been flagged as inappropriate, target creators for their race and viewpoints.
YouTube’s algorithm automatically tags videos to be excluded in restricted settings, and videos can also be flagged by users as potentially inappropriate, and then reviewed by a human team, the complaint said.
The company’s filtering and review tools profile racial identity and place restrictions on content creators by blocking access to their videos in restricted mode, even if those videos don’t meet the platform’s criteria for inappropriate content, the suit alleged. And the company demonetizes certain accounts by preventing advertising from running on those flagged videos.
Other discriminatory activity by the company includes “shadow banning” videos and channels, excluding them from lists of trending videos, and interfering with livestream broadcasts, the complaint said.
The U.S. District Court for the Northern District of California dismissed the claims with leave to amend.
The content creators failed to allege facts showing that YouTube intentionally discriminated against them, which is required for a federal claim for racial discrimination in contract, Judge Lucy H. Koh wrote.
Personal belief of discrimination isn’t sufficient to satisfy federal pleading standards, Koh said, and the YouTubers don’t allege the platform prevented them from posting, or took down their content.
Koh also dismissed a free speech claim under the First Amendment, finding the content creators failed to allege YouTube’s conduct constituted state action.
The content creators also alleged that YouTube’s restriction of certain videos constitutes false advertising, because it conveys to users that there’s something inappropriate in those videos.
That argument has been squarely rejected by the U.S. Court of Appeals for the Ninth Circuit, which previously held that YouTube’s statements as part of its restricted mode setting aren’t commercial advertising, among other things.
And even if YouTube’s statements about restricted content could be considered under the Lanham Act, the injuries alleged in the complaint aren’t caused by those statements, but by the company’s actions in limiting access to videos, Koh said.
Koh also dismissed remaining state law claims.
Browne George Ross O’Brien Annaguey & Ellis LLP represents the content creators. Wilson Sonsini Goodrich and Rosati PC represents Google.
The case is Newman v. Google LLC, N.D. Cal., No. 5:20-cv-04011, 6/25/21.
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