A group of Black and Latino YouTubers can’t sue Google over accusations that content moderation tools used by the Google-owned YouTube discriminated against content created by non-white users, a judge has ruled.
On Thursday, Aug. 17, U.S. District Judge Vince Chhabria, in California’s Northern District federal court in San Francisco, entered an order granting Google’s request to dismiss the class action lawsuit.
While not downplaying the plaintiffs’ claims, the judge described as “downright baffling” some of the evidence put forward by the content creators in support of those claims.
“The general idea that YouTube’s algorithm could discriminate based on race is certainly plausible,” Chhabria wrote. “But the allegations in this particular lawsuit do not come close to suggesting that the plaintiffs have experienced such discrimination.”
The ruling comes as the latest step in a legal battle that has continued for more than three years.
In June 2020, plaintiffs Kimberly Carleste Newman, Lisa Cabrera, Catherine Jones and Denotra Nicole Lewis filed their action in San Francisco federal court. They were represented by attorneys Peter Obstler, Eric M. George, Debi A. Ramos and Keith R. Lorenze, of the firm of Browne George Ross, of San Francisco and Los Angeles.
Each of the Youtube content creator plaintiffs asserted they are the creators and hosts of channels dedicated to presenting videos created to appeal to Black or Latino audiences, and discuss issues they said are important to Black and Latino viewers.
However, the lawsuit asserts Youtube has used content moderation algorithms to either censor their videos, restrict their reach or “demonetize” their content, in ways that they claim have not similarly applied to video content created by white Youtubers.
Initially, the lawsuit asserted YouTube’s alleged mistreatment violated their constitutional rights. However, those claims were dismissed, leaving them to press a breach of contract case, accusing YouTube of violating its user agreement by not equally applying its Community Guidelines.
They have sought to press their claims as a class action on behalf of all other Black and Latino Youtube content creators who they believe Youtube has allegedly similarly discriminated against.
However, in the Aug. 17 ruling, Chhabria dismissed those claims.
The judge said the plaintiffs failed to present enough evidence to back their claims that YouTube’s treatment of their particular channels amounted to a breach of any kind of promise under the Community Guidelines.
The judge particularly took issue with the plaintiffs’ attempts to compare YouTube’s treatment of 32 videos to 58 others supposedly posted by “white users.”
The judge noted that at least 26 of the 58 comparator videos were posted by what the plaintiffs described as “large corporations.” The plaintiffs attempted to argue that all large corporations should be treated as if they were white people, the judge noted.
“The plaintiffs have offered no principled basis for their proposition that corporations can be treated as white …, nor have they plausibly alleged that YouTube actually identifies or classifies corporations as white,” Chhabria wrote.
As for the other comparator videos, the judge said many of the choices were “downright baffling.” He noted many of the comparator videos were innocuous, while some of the restricted videos outright accused YouTube of “conscious sabotage … driven by animus” or addressed racial controversies, such as that surrounding the Walt Disney Company’s decision to cast Black actor Halle Bailey to star in The Little Mermaid. The judge noted comparator videos discussed how to contact YouTube support or showed “a man playing – and playfully commenting on – a goofy, holiday-themed video game.”
The plaintiffs’ “allegations are not meaningless,” the judge said. “But they do not come close to making up for the glaring deficiencies” in the plaintiffs’ pleadings.
The judge further noted the allegations center on actions taken by YouTube years before it added its promise to its Community Guidelines to treat all video content moderation decisions equally, and to factor in the race of the users.
The judge dismissed the case with prejudice, meaning the plaintiffs are not able to amend and resubmit their complaint. They can still appeal, and the judge ordered both sides to leave untouched the videos referenced in the complaint until the appeals process “has run its course.”
YouTube and Google have been represented in the case by attorneys David H. Kramer, Lauren Gallo White, Kelly M. Knoll and Brian M. Willen, of the firm of Wilson Sonsini Goodrich & Rosati, of Palo Alto and New York.