This is another case of account closure. The plaintiff operated two YouTube channels with 145,000 subscribers. The opinion implies that the channels have hyped an unapproved FDA-approved steroid-like supplement ("SARMS"). As is common with cases in this genre, the plaintiff alleged that YouTube consented to these videos until it changed its mind moodily. At that time, it had wrongly destroyed the canals. The plaintiff therefore sued "preventing the defendants from unlawfully censoring their educational and informational videos and discriminating against their right to freedom of expression on arbitrary and capricious grounds that violate Community guidelines and terms of use published by the defendants". (Mandatory Notes on Plaintiff's Unfortunate Misunderstanding of What "Censorship" and "Freedom of Expression" mean). The court grants YouTube's motion to dismiss.

Section 230

For the most part, this is a simple § 230 (c) (1) discharge. The court uses the standard three-part test:

ICS provider: The plaintiff did not deny this, "and neither could it." "YouTube and Google easily fall under that definition."

Third-party content: Following the Sikhs for Justice case, the court states that the plaintiff's videos are third-party content for YouTube.

Editor / Spokesperson Allegations: "Plaintiff objects to Defendant's decision to remove plaintiff's videos and terminate his accounts. "Removing content is something that publishers do, and in order to impose liability on the basis of such conduct, the liable party must necessarily be treated as a publisher." (Quote Barnes). This eliminates the Unfair Competition Claim of 17200 and the Lanham Act false advertising allegation (not indicative of the Enigma v Malwarebytes of the 9th Circuit decision, although this directly applies to the application of Section 230 to Lanham Act false advertising ).

However, the court pursuing the Barnes case says that the plaintiff's implied good faith and fair trade contract "is based on defendants' interference in the agreement of the parties." Citing Darnaa v. Google, "a violation of the implicit covenant claim because it is based on a contract rather than a defendant status as publisher is not precluded by Section 230 (c) (1)." POOH. In the Barnes case, a section 230 (c) (1) exception was made for the promissory notes, but this has been interpreted by some courts to exclude any contractual or contractual claim. See e.g. For example, the recent New Hampshire Supreme Court ruling in Teatotaller v Instagram, which stated that "specific promises" in the Terms of Use (whatever that means) are outside of Section 230 (c) (1). On the other hand, it has been specifically stated in a number of cases that Section 230 (c) (1) applies to the implicit contract of good faith and fair dealing, including Lewis v. YouTube and FAN v. Facebook.

As a result, there may be disagreement as to whether section 230 (c) (1) applies to claims for breach of the implied treaty of good faith and fair dealing. If this claim is successfully based on Section 230 (c) (1), it is regrettable as it will never ultimately succeed. All Terms of Use expressly state that the Service may terminate any Content or Accounts in its sole discretion, and the implied contract cannot override that. So this is another example where a better section 230 (c) (1) passing lane to achieve this inevitable result would put everyone in a better position.

At this point in the opinion, the only remaining claim is the implicit contract of good faith and fair dealing, so the court will evaluate other defenses against this claim.

Section 230 (c) (2)

As the court summarized, "Section 230 (c) (2) … provides the defendants with immunity from" police content "provided they do so in good faith." The plaintiff cited various (unconvincing) reasons why YouTube was terminated Account was not made in good faith and the court said it would have to accept these allegations as true on a motion to dismiss. Another example of why section 230 (c) (1) has far surpassed the meaning of section 230 (c) (2).

Merits of the implied covenant of good faith and the right to fair treatment

Once we have the merits of the good faith / fair trade claim, the court has no problem destroying it (citing Song Fi v. Google):

(Pursuant to YouTube's Terms of Use) Defendants have the right “to decide at any time, without notice and in their sole discretion, whether any content violates the Terms of Use” and “remove and / or remove such content or the account of a Terminate the user for submitting this material in violation of these Terms of Use. "Defendants can also" discontinue any aspect of the service at any time ". The Community Guidelines again state that "(v) Ideos that show () harmful or dangerous actions can be age-restricted or removed, depending on their severity". Pursuant to the terms of these agreements, it is in the sole discretion of Defendants to determine whether Plaintiff's videos were harmful, dangerous or otherwise violated the Terms of Use and Community Guidelines and to discontinue the service "at any time". That the plaintiff may have disagreed with his reasoning or lost income as a result is simply not true

However, the court dismissed the lawsuit unscathed and gave the plaintiff one more chance to rally in support of this lawsuit. It is guaranteed to fail, but the plaintiff will try anyway and then challenge his loss on the Ninth Circuit.

Case Quote: Enhanced Athlete, Inc. v Google LLC, Case No. 19-cv-08260-HSG (N.D. Cal. August 14, 2020)

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