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  1. PART I: THE PATH TO DIVINO GROUP AND THE ROADBLOCKS FOLLOWING

PART I: THE PATH TO DIVINO GROUP AND THE ROADBLOCKS FOLLOWING

The Divino Group case was motivated by the repeated flagging, removal, and demonetization of content created by LGBTQ+ identifying creators. In 2017, creators such as Chase Ross,35 Rowan Ellis,36 Tyler Oakley,37 Stevie Boebi,38 and NeonFiona 39 began vocally complaining that their content had been “hidden, demonetized, or age-gated.”40 Chase Ross and NeonFiona both provided screenshot evidence on their respective Twitter accounts showing that their channels’ content had been restricted due to the inclusion of certain keywords in their videos’ titles. Ross’ videos including the word “trans*” were flagged and demonetized.41 In NeonFiona’s case, viewing her channel in “restricted mode,” 42 which limits accessible videos to non-adult content, caused videos including the words “gay,”

34 CDA 230: The Most Important Law Protecting Internet Speech, ELECTRONIC FRONTIER FOUND., https://www.eff.org/issues/cda230 (last visited Oct. 16, 2021).

35 See Ross, supra note 7.

36 Rowan Ellis is a “video essayist and creator” who creates content based on LGBTQ+ issues and pop culture. Rowan Ellis, About, ROWANELLIS.COM, https://www.rowanellis.com/ (last visited Oct. 31, 2021).

37 Tyler Oakley is a gay advocate for LGBTQ+ youth who created YouTube content every week from October 2007 to December 2020. See Tyler Oakley, About: Tyler Oakley, TYLEROAKLEY.COM, https://tyleroakley.com/ (last accessed Oct. 31, 2021).

38 Stevie Boebi is a lesbian creator who acts as an “advocate for the lesbian community, and the LGBTQ+ world at large.” SHORTY AWARDS,STEVIE BOEBI, https://shortyawards.com/ 9th/stevieboebi (last accessed Oct. 31, 2021); see also Stevie Boebi (@stevieboebi), TUMBLR, https://stevieboebi.tumblr.com/ (last accessed Oct. 31, 2021).

39 “NeonFiona” is a bisexual YouTube creator. See NeonFiona (@neonfiona), YOUTUBE, https://www.youtube.com/c/neonfiona/videos (last accessed Oct. 31, 2021).

40 Megan Farokhmanesh, YouTube is Still Restricting and Demonetizing LGBT Videos – and Adding Anti-LGBT Ads to Some, THE VERGE (June 4, 2018, 2:46 pm), https://www.theverge.com/2018/6/4/17424472/youtube-lgbt-demonetization-ads-algorithm.

41 Ross, supra note 7.

42 See Niraj Chokshi, YouTube Filtering Draws Ire of Gay and Transgender Creators, N.Y. TIMES (Mar. 20, 2017), https://www.nytimes.com/2017/03/20/technology/youtube-lgbt-videos.html.

“girlfriend,” “lesbian,” and “bisexual” to disappear from the list of available content. 43

Authors Wayne Wilkinson and Stephen Berry consider these restrictions a consequence of the “YouTube Adpocalypse of 2017.” 44 The “Adpocalypse”45 began with a series of controversial videos posted on the channels of several popular YouTube creators in 2016-17: Felix Kjellberg (“PewDiePie”), whose video included anti-Semitic and alt-right propaganda;46 Logan Paul, who traveled to Aokigahara Forest and posted a video depicting the body of someone who died from suicide; 47 and Steven Crowder, a prominent right-wing conservative who slandered gay journalist Carlos Maza. 48 Advertisers began boycotting the platform in response to their ads being placed on videos such as PewDiePie’s, Paul’s, and Crowder’s.49 YouTube took immediate steps to implement advertiser protections in response to the PewDiePie video, 50 resulting in the “Advertiser-Friendly Content Guidelines” of 2016.51 Soon after, content creators began seeing “dips in revenue” as these policies allowed advertisers to selectively “pull their ads from videos they disagreed with or found [to be] distasteful.”52 Months later following the removal of the Logan Paul video, 53 YouTube further honed its new policies to create specific requirements for ad revenue.54 In order to monetize, creators needed a) at least “4,000 hours of accrued watch time” in the last 12 months and b) over 1,000

43 NeonFiona (@neonfiona), TWITTER (Mar. 16, 2017), https://twitter.com/neonfiona/status/ 842390135257874432.

44 Wayne W. Wilkinson & Stephen D. Berry, Together They Are Troy and Chase: Who Supports Demonetization of Gay Content on YouTube?, 9(2)PSYCH.POPULAR MEDIA 224, 224 (2020).

45 See, e.g., Sangeet Kumar, The Algorithmic Dance: YouTube’s Adpocalypse and the Gatekeeping of Cultural Content on Digital Platforms, 8(2) INTERNET POL’Y REV. 1 (2019); Rachel Dunphy, Can YouTube Survive the Adpocalypse?, N.Y. MAGAZINE (Dec. 28, 2017), https://nymag.com/intelligencer/2017/12/can-youtube-survive-the-adpocalypse.html; Piper Thomson, Understanding YouTube Demonetization and the Adpocalypse, G2.COM (June 14, 2019), https://learn.g2.com/youtube-demonetization.

46 Thomson, supra note 4; see also Aja Romano, The Controversy Over YouTube Star PewDiePie and His Anti-Semitic “Jokes,” Explained, VOX (Feb. 17, 2017), https://www.vox.com/culture/2017/2/17/14613234/pewdiepie-nazi-satire-alt-right.

47 See Robinson Meyer, The Social-Media Star and the Suicide, THE ATLANTIC (Jan. 2, 2018), https://www.theatlantic.com/technology/archive/2018/01/a-social-media-stars-error/549479/; see also Thomson, supra note 4.

48 O’Brian, supra note 15.

49 See, e.g., Steven Sanford, YouTube and the Adpocalypse: How Have the New YouTube Advertising Friendly Guidelines Shaped Creator Participation and Audience Engagement? (2018) (M.Sc. Thesis, Lund University) (on file with university) (“Across an 18 month period covering starting in 2016, YouTube was subjected to a major advertising boycott … During this period a large number of high profile brands began to quickly and quietly withdraw their adverts, en masse. This was done after it was discovered that a number of them had been placed, via the platforms automatic algorithm, in thousands of videos which broadcast messages of hate, violence and extremism”).

50 Thomson, supra note 4.

51 See Mulkerin, supra note 20; see also ADVERTISER-FRIENDLY CONTENT GUIDELINES, supra note 21.

52 Thomson, supra note 4.

53 Meyer, supra note 47.

54 Thomson, supra note 4.

subscribers.55 One effect of these statistical requirements was that “[h]uge numbers of channels were purged from ad networks”56 while the creators strove to meet the new standards—or waited to find out whether they would have sufficient numbers at the end of 12 months.57

While the second tweak to monetization may not have had a striking effect on LGBTQ+ creators, the third and final change certainly did. This change followed the widespread backlash from YouTube’s decision not to censor or remove Steven Crowder’s overtly homophobic videos attacking a gay Vox journalist. 58 YouTube initially stood by its decision in the Crowder controversy, though it later “flipflopped” and suspended Crowder’s monetization.59 YouTube then chose to reassess how advertisers were being affected by controversial content.60 In a seeming effort to shift responsibility for ad placements from YouTube to the ad companies themselves, this change allowed for advertisers to specifically exclude broad categories of content. Those categories are: 1) “tragedy and conflict”; 2) “sensitive social issues”; 3) “sexually suggestive content”; 4) “sensational and shocking”; and “profanity and rough language.” 61 These categories were not visible to content creators, only to advertisers. 62 Thus, creators had no way to know whether their content fell under the aforementioned categories. As of today, advertisers can also choose a Standard Content option for their ad placement which broadly restricts “sexual” content.63

Even more importantly, YouTube took the step of updating its content-flagging algorithm to be “more stringent”—with the side effect of “the algorithm automatically demonetizing and de-platforming numerous channels that simply covered sensitive and controversial issues.”64 LGBTQ+ creators noticed that their videos, and revenue, were being affected by these changes soon after they were implemented. The Divino Group complaint alleged that the changes to the algorithm, as well as the categorizations offered to advertising companies, were automatically, discriminatorily, and unfairly causing ads to be removed from the named creators’ videos. 65 The complaint also accused YouTube of discrimination on the basis that YouTube admitted to “hiding from view” content that included or referenced “same-sex relationships” and “pop culture from a feminist and queer perspective.”66

55 Id.

56 Id.

57 Id.

58 See Danny Nett, Is YouTube Doing Enough to Stop Harassment of LGBTQ Content Creators?, NPR (June 8, 2019), https://www.npr.org/2019/06/08/730608664/is-youtube-doing-enough-tostop-harassment-of-lgbtq-content-creators.

59 Jennifer Elias, YouTube Flip-Flops on Suspending Video Blogger Accused of Harassment, CNBC (June 5, 2019), https://www.cnbc.com/2019/06/05/youtube-flip-flops-on-steven-crowdersuspension.html.

60 Id.

61 Kumar, supra note 45, at 4.

62 Id.

63 Id.

64 Thomson, supra note 4.

65 Class Action Complaint, supra note 2.

66 Id. at para. 11.

YouTube is, in essence, a source of media and entertainment, and some might believe that simply removing advertisements or flagging content as “adult” does very little harm to those posting the content. However, YouTube is not strictly a “media repository” but rather provides “a substantial (or exclusive) source of income for many content creators through advertising revenue.”67 Demonetization is thus “censorship by proxy.” 68

Furthermore, many creators fund their channels and build their brands through advertising revenue alone.69 Since YouTube has a massive presence on the internet, accounting for the majority of video consumption in the United States and boasting 2.6 billion users worldwide, 70 it is the preeminent option for creators who want to build a global brand presence via video. However, YouTube is not required to allow all content creators to host their videos on its platform or pay all users for their views. As a private company it can selectively choose the type and availability of its users’ content, despite that content’s role in providing income to the creator. Censorship, in this context, is permissible; but if the company’s stance is to support and permit specific communities’ content—as it claims with the LGBTQ+ community 71—then mistaken censorship that punishes those communities ought to result in recourse and compensation for those affected. The issue as highlighted by the court in its reasoning for dismissing the Divino Group suit, 72 is that social media platforms like YouTube do not guarantee free speech.

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