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Suit by Controversial Anti-Vaccine Physician Against YouTube Validly Axed—Ninth Circuit
By a MetNews Staff Writer
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JOSEPH MERCOLA osteopathic physician |
A nationally known osteopathic physician, regarded by many as a spunky renegade who promotes simple common-sense cures over expensive products of the pharmaceutical industry, and is seen by others as a quack, has lost his bid in the Ninth U.S. Circuit Court of Appeals for reversal of an order booting him out of the District Court in his action against YouTube for blocking access by him to banned videos he uploaded.
The memorandum opinion, filed Wednesday, affirms an order by Magistrate Judge Laurel Beeler of the Central District of California dismissing with prejudice the complaint filed by Dr. Joseph Mercola and by Mercola.com, LLC—referred to in the opinion collectively as “Mercola”—for damages and for an order giving them the right to retrieve the videos the doctor posted.
By September 2021, there were more than 300,000 subscribers to Mercola’s YouTube channel which had been viewed about 50 million times. YouTube deleted the videos on Sept. 29 of that year on the ground that they ran afoul of its “Community Guidelines” because they contained medical misinformation.
Mercola, licensed by the State of Illinois as a physician and surgeon, was a leading advocate of the public foregoing inoculations against COVID-19. He urged, instead, buying vitamin compounds from him.
The Federal Drug Administration on Feb. 18, 2021, called upon Mercola to “take immediate action to cease the sale of… unapproved and unauthorized products for the mitigation, prevention, treatment, diagnosis, or cure of COVID-19.” He dismantled his own sales website in response.
Mercola’s Contention
Mercola, now operating out of Florida, sought damages exceeding $75,000—the jurisdictional minimum in a diversity action—in which he maintained that YouTube, which is based in San Bruno, California, had no right to yank his videos without providing sufficient warning to enable him to recover possession of them, citing a clause in the user agreement saying:
“YouTube will provide reasonable advance notice of any material modifications to this Agreement and the opportunity to review them….”
However, YouTube pointed to other provisions, including one titled “Removal of Content,” declaring:
“If we reasonably believe that any Content is in breach of this Agreement or may cause harm to YouTube, our users, or third parties, we may remove or take down that Content in our discretion.”
Ninth Circuit Decision
Wednesday’s memorandum opinion—signed by Circuit Judges Consuelo M. Callahan and Gabriel P. Sanchez, joined by Senior District Court Judge John A. Kronstadt of the Central District of California, sitting by designation—says:
“There is no conflict if the Modification Clause is read to apply to changes in services provided by YouTube and the other sections are read to apply to suspending or terminating an account because YouTube has determined that its content could create a liability or harm others.”
The judges said that “Mercola’s reading of the Modification Clause is not reasonable as it would eviscerate” the “Removal of Content” clause as well as one relating to “Termination and Suspensions by YouTube for Cause.” They commented:
“Moreover, to construe the Modification Clause to prohibit the immediate termination of an account that causes harm to others would be contrary to protecting the public. In September 2021, when YouTube terminated Mercola’s account, it was reasonable (even if incorrect) to consider ‘anti-vaccine’ postings to be harmful to the public.”
On his website, it is said of Mercola, an author of two best-selling books:
“By sharing valuable knowledge about holistic medicine, regenerative practices and informed consent principles, he has become the most trusted source for natural health information, with a legacy of promoting sustainability and transparency.”
Mercola also sued Google which was not a party to the appeal.
The case is Mercola.Com, LLC v. Google LLC, 23-2608.
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