INTRODUCTION

INTRODUCTION

INTRODUCTION

In August of 2019, eight LGBTQ+ creators¹ filed a class action lawsuit against YouTube (via its parent company, Google)² in which they alleged that YouTube specifically and unfairly targeted their content for flagging, restricted viewing, and demonetization.³ The term “demonetization” on an ad-sponsored platform, such as YouTube, means “the process wherein independent content creators are denied paid advertisements in their video, thus denying them revenue and reducing their income from the video-hosting platform.”⁴ A “creator” on YouTube is a power user or YouTube “partner” who a) has established themselves, and their YouTube channel, as a source of unique and follower-generating content and b) benefits from YouTube’s monetization and internal recognition platforms, while not holding employment as a paid influencer for a third party.⁵

The creators’ lawsuit, Divino Group, LLC et al. v. Google LLC et al., considered whether the censorship of LGBTQ+ content merited either a First Amendment claim or a civil rights discrimination claim against the platform (or both). ⁶ One transgender creator, Chase Ross, provided evidence that his videos were restricted when he included the word “trans” in their titles.⁷ Another creator, Sal Bardo, noticed in 2017 that his “benign” (non-sexually explicit or profane) LGBTQfocused videos had been placed in restricted mode and demonetized without notice from YouTube.⁸ Bardo spoke to other creators in the community who claimed that the same was happening to them: LGBTQ-focused videos (or those tagged with LGBTQ+ keywords) were being targeted by YouTube’s blacklist algorithms. ⁹

¹ See Taylor Lorenz, The Real Difference Between Creators and Influencers, THE ATLANTIC (May 31, 2019), https://www.theatlantic.com/technology/archive/2019/05/how-creators-becameinfluencers/590725/ for a discussion about the differences in terminology.

² Class Action Complaint for Damages, Injunctive Relief, Restitution, and Declaratory Judgment, Divino Group, LLC et al. v. Google LLC et al., No. 5:19CV04749 (N.D. Cal. Aug. 13, 2019).

³ James Hale, 8 Creators File Suit Against YouTube, Claiming it Discriminates Against LGBTQ+ Content, TUBEFILTER (Aug. 14, 2019), https://www.tubefilter.com/2019/08/14/8-creators-file-suitagainst-youtube-claiming-it-discriminates-against-lgbtq-content/; see also Greg Bensinger & Reed Albergotti, YouTube Discriminates Against LGBT Content by Unfairly Culling It, Suit Alleges, WASH.POST (Aug. 14, 2019), https://www.washingtonpost.com/technology/2019/08/14/youtubediscriminates-against-lgbt-content-by-unfairly-culling-it-suit-alleges/.

⁴ Piper Thompson, Understanding YouTube Demonetization and the Adpocalypse, G2 LEARN HUB (June 14, 2019), https://learn.g2.com/youtube-demonetization.

⁵ See Lorenz, supra note 1.

⁶ Class Action Complaint, supra note 2.

⁷ Chase Ross (@ChaseRoss), TWITTER (Oct. 8, 2017, 4:22 pm), https://twitter.com/ChaseRoss/ status/917122952176467969.

⁸ E.J. Dickson, Inside LGBTQ Vloggers’ Class-Action ‘Censorship’ Suit Against YouTube, ROLLING STONE (Nov. 14, 2019, 1:54 pm), https://www.rollingstone.com/culture/culturefeatures/lgbtq-youtube-lawsuit-censorship-877919/.

⁹ Id.; see also Lindsay Dodgson, YouTubers Have Identified a Long List of Words that Immediately get Videos Demonetized, and They Include ‘Gay’ and ‘Lesbian’ but not ‘Straight’ or ‘Heterosexual’, INSIDER.COM (Oct. 1, 2019, 8:49 am), https://www.insider.com/youtubersidentify-title-words-that-get-videos-demonetized-experiment-2019-10.

The company was apparently aware that the content had been flagged inappropriately and was working to remedy the issue. ¹⁰ However, even after Bardo’s flags had been lifted in 2018, his content was re-flagged by late 2019. ¹¹ At that time, Bardo received a message indicating his channel had been demonetized because it contained “content isolated for the sole purpose of sexual gratification.”¹² Despite the evidence provided by the plaintiffs, Magistrate Judge for the Northern District of California Virginia K. DeMarchi indicated initial skepticism on the merits of the case ¹³ and, in January of 2021, granted Google et al.’s motion to dismiss for failure to state a claim upon which relief could be granted.¹⁴

YouTube itself has wavered on its own enforcement of policies regarding censorship. In mid-2019, the platform overtly refused to take down videos from or ban right-wing YouTuber Steven Crowder, who repeatedly targeted gay journalist Carlos Maza using homophobic and racist slurs. ¹⁵ Yet later that year (and likely in response to the backlash on its refusal to moderate such content), it claimed that it was instating and enforcing a new anti-harassment policy that would apply to content that negatively targeted people based on race, gender expression, or sexual orientation.¹⁶ Today, its policies indicate that it prefers not to censor content, as it believes that “a broad range of perspectives ultimately makes us a stronger and more informed society.” ¹⁷ However, YouTube provides community guidelines limiting spam, “sensitive” content (including sexual or adult content), violent content, regulated goods, and misinformation generally. ¹⁸ Its YouTube Partner Program (“YPP”), which provides monetization for approved content creators, dictates that creators must meet a specific list of requirements in order to retain monetization rights.¹⁹ Those requirements, ²⁰ introduced in 2016—prior to the current policies—specify that content creators must adhere to “advertiser-friendly

¹⁰ Dickson, supra note 8.

¹¹ Id.

¹² Id.

¹³ Dorothy Atkins, LGBTQ Bias Suit Against YouTube Faces Skeptical Judge, LAW360 (June 2, 2020, 6:59 pm), https://www.law360.com/articles/1279094/lgbtq-bias-suit-against-youtube-facesskeptical-judge.

¹⁴ Order Granting Motion to Dismiss, Divino Group LLC et al. v. Google LLC, et al., no. 19-cv04749-VKD (N.D. Cal. 2021).

¹⁵ Paolo Zialcita, YouTube Announces New Anti-Harassment Policy to Fight Racial, Gender, LGBTQ Abuse, NPR (Dec. 11, 2019), https://www.npr.org/2019/12/11/787165948/youtubeannounces-new-anti-harassment-policy-to-fight-racial-gender-lgbtq-abuse; see also Sara Ashley O’Brian, YouTube CEO Apologizes to LGBTQ Community but Stands by Crowder Decision, CNN BUSINESS (June 10, 2019), https://www.cnn.com/2019/06/10/tech/youtube-susan-wojcicki-codecon/index.html.

¹⁶ Zialcita, supra note 15.

¹⁷ YOUTUBE.COM, POLICIES OVERVIEW, https://www.youtube.com/howyoutubeworks/policies/overview/ (last visited Oct. 16, 2021).

¹⁸ YOUTUBE.COM, COMMUNITY GUIDELINES, https://www.youtube.com/howyoutubeworks/policies/community-guidelines/ (last visited Oct. 16, 2021).

¹⁹ GOOGLE SUPPORT, YOUTUBE CHANNEL MONETIZATION POLICIES, https://support.google.com/youtube/answer/1311392 (last visited Oct. 16, 2021).

²⁰ Tim Mulkerin, A Bunch of Famous YouTubers are Furious at YouTube Right Now – Here’s Why, BUSINESS INSIDER (Sept. 1, 2016), https://www.businessinsider.com/youtube-starsadvertiser-friendly-content-guidelines-2016-9.

content guidelines.²¹ Specifically, they must not contain sexually suggestive content, violence, “inappropriate language,” promotion of drugs, or “controversial or sensitive subjects.”²²

YouTube is the United States’ second-most visited website.²³ Its monthly hits in August of 2021 numbered 4.62 billion.²⁴ As of May 2020, YouTube accounted for 15 percent of all traffic on consumer broadband networks worldwide.²⁵ Despite being a video platform, YouTube is also classified as “social media”²⁶ due to its widespread and active community of users. ²⁷ Additionally, the platform’s monetization is based upon numbers of views, shares, clicks, and interactions with paid ads. ²⁸ It “monetizes” videos via “pre-roll, display, and other advertising formats. Advertisers pay based on clicks and impressions,”²⁹ which necessitates social activity such as sharing and commenting. This weighs in favor of its being considered a social tool. However, the classification of a platform as being “social” does not automatically grant its users the right to free speech on that platform. In fact, social media platforms are, as private platforms, entitled to censor as they see fit. This is because they are not considered to be “public forums.”³⁰

“Public forums,” elaborated upon in Part II below, are forums which provide a protected space for public debate and assembly.³¹ Judge DeMarchi argued in Divino Group that, as private platforms, Google et al. would (a) not be subject to a civil rights claim and (b) be entitled to “Section 230” protections. ³² DeMarchi was referring to Section 230 of the Communications Decency Act of 1996 (“CDA”). ³³ Section 230 was intended to protect publishers of third-party content from liability for their users’ posts and activities on their platforms; this protection is granted to any service that publishes third-party content, and has today been expanded to

²¹ GOOGLE SUPPORT, ADVERTISER-FRIENDLY CONTENT GUIDELINES, https://support.google.com/youtube/answer/6162278 (last visited Oct. 16, 2021).

²² Mulkerin, supra note 20.

²³ Top 100: The Most Visited Websites in the US [2021 Top Websites Edition], SEMRUSH.COM, https://www.semrush.com/blog/most-visited-websites/ (last visited Oct. 16, 2021) [hereinafter Top 100].

²⁴ Id.

²⁵ Peter Suciu, YouTube Remains the Most Dominant Social Media Platform, FORBES (Apr. 7, 2021), https://www.forbes.com/sites/petersuciu/2021/04/07/youtube-remains-the-most-dominantsocial-media-platform/.

²⁶ See Top 100, supra note 23 (depicting a chart of insights on the most popular sites in the US by industry, wherein YouTube is categorized as a “social network”).

²⁷ See Stephen Tornetta, The Case for YouTube as a Social Media Channel, CHATTERBLAST (Sept. 20, 2019), https://chatterblast.com/the-case-for-youtube-as-a-social-media-channel/.

²⁸ Mary Hall, How Do People Make Money on YouTube?, INVESTOPEDIA (Aug. 6, 2021), https://www.investopedia.com/ask/answers/012015/how-do-people-make-money-videos-theyupload-youtube.asp.

²⁹ Id.

³⁰ Public Forum, Merriam-Webster, https://www.merriam-webster.com/legal/public%20forum (last visited Oct. 16, 2021).

³¹ Id.

³² Divino Group LLC et al. v. Google LLC et al., 2021 WL 51715 (N.D. Cal. 2021).

³³ 47 U.S.C. § 230 [hereinafter Section 230].

include social media platforms where “third parties” are the users of those platforms. ³⁴

This paper argues that Section 230, despite its role in fostering the exchange of information on the internet, has been misapplied due to its drafters’ understandable lack of foresight into what the internet has become both as a source of communication and of income for content creators. Part I discusses the origins of the Divino Group lawsuit and the importance of YouTube content creation as a source of income for the LGBTQ+ community. Part II elaborates upon Section 230 and its legislative history. Part III suggests language for modifying Section 230 to provide recourse for monetized content creators whose content has been inappropriately flagged and demonetized—in other words, censored—irrespective of whether the censorship was intentional.

INTRODUCTION

Table of Contents