Mercola.Com, LLC v. Google, LLC

Background

YouTube terminated Dr. Joseph Mercola’s YouTube channel on September 29, 2021, stating that the account had committed multiple or severe violations of its medical-misinformation policies. YouTube later denied the plaintiffs’ appeal. Mercola and Mercola.Com, LLC sued Google LLC, YouTube LLC, Alphabet Inc., and Does 1–10.

The operative complaint asserted six claims: two breach-of-contract claims based on alleged failures to give advance notice or a warning; breach of the implied covenant of good faith and fair dealing; specific performance, meaning a court order requiring performance or access to the content; unjust enrichment; and conversion, meaning wrongful control over another’s property. The plaintiffs sought monetary relief and access to their video content. In their opposition, they narrowed their position by saying they were not challenging YouTube’s right to deny them a platform, but were challenging the denial of access to their content.

Motion and Legal Standard

The defendants moved to dismiss under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim. They argued that the plaintiffs had not plausibly alleged a breach of contract, that the agreement’s limitation-of-liability provision barred damages, and that Section 230(c) of the Communications Decency Act barred the claims.

The court granted the motion based on the first two grounds. The opinion did not rely on the Section 230 argument in dismissing the complaint.

Contract and Access to Content

The agreement stated that YouTube had no obligation to host or serve content. It also allowed YouTube to remove or take down content when it reasonably believed the content breached the agreement or could harm YouTube, its users, or third parties. The court found that the agreement gave YouTube discretion to remove the plaintiffs’ content, immediately apply certain guideline modifications made for legal reasons, and terminate a channel without warning after a single case of severe abuse.

The court further held that the agreement did not provide a right to access content after termination for cause. Although the agreement provided an avenue to export content when access was terminated because of service changes, the court found that provision did not apply here. The court therefore concluded that the plaintiffs had not plausibly pleaded contract or quasi-contract claims based on denial of access to their content.

The agreement also limited liability for losses arising from interruption or cessation of the service and from removal or unavailability of content. It excluded several categories of damages and limited total liability for service-related claims to the greater of the revenue YouTube had paid the user during the relevant period or $500. The court held that this provision independently foreclosed damages on the plaintiffs’ contract and tort theories.

Individual Claims

The implied-covenant claim was duplicative of the contract claims because it concerned the same alleged failure to warn and failure to provide access to the content. Because YouTube’s actions were permitted by the Terms of Service, the court held that this claim failed as well. The limitation-of-liability provision also foreclosed relief on that claim.

The court rejected the unjust-enrichment claim because the parties had an enforceable contract and the plaintiffs did not allege that the defendants obtained benefits through fraud, duress, or similar conduct. The court rejected the conversion claim because the plaintiffs had not plausibly alleged a wrongful act: the agreement did not require YouTube to host or retain the content.

The court also dismissed the request for specific performance seeking access to the content because the agreement did not require YouTube to provide that access after the channel’s termination.

Disposition

The court dismissed the complaint and stated that the dismissal was without leave to amend because the contract barred the claims as a matter of law. The order disposed of ECF Nos. 25 and 30.