Introduction to the conflict
YouTube, as we all know happens to be the biggest online video-sharing platform that enables the users to view, share, like, comment, and subscribe to a variety of channels. With over 500 hours of content uploaded on YouTube every minute, it caters to a large audience. YouTube was an independent platform founded by 3 employees at PayPal until it was acquired by Google Inc. in 2006. So now, it is one of the subsidiaries of Google.
Several YouTubers in 2019 claimed that the YouTube algorithm is not fair as they are not getting the recognition; hence, ad revenue.The company denies it discriminates against creators. The original lawsuit claims that YouTube uses “unlawful content regulation, distribution, and monetization practices that stigmatize, restrict, block, demonetize, and financially harm the LGBT Plaintiffs and the greater LGBT Community.”[1]
The lawsuit is based on discrimination that led to financial loss, reduction in reach and views, advertisement blockage, and mental trauma suffered by the community. The plaintiffs allege that their revenue through YouTube has significantly reduced as they do not have any ads on their videos. Secondly, they also claim that YouTubeube and google have a discriminatory policy against the LGBTQ+ community which has led to all of this.
‘Sam’, a film directed by Sal Bardo in 2017 is based on the life of a transgender child. Sal uploaded it on YouTube in the same year. Soon after its release, he observed a constant decline in the views (from 60,000 a day to 5,000). He realized that the film has been categorized under “potentially mature” content, restricting the viewership. All of this had happened sans any notice/prior information from YouTube. Later, a blanket ban on Sam was applied and nobody could find it. The Director clearly stated that the content he uploaded was not profane and required no restriction, not a ban to say the least.
Around late 2019, most of the videos were removed and demonetized without any prior information from YouTube. He also received an email in September 2019 saying his entire channel had been demonetized because it contained “content isolated for the sole purpose of sexual gratification.”[2]
Case Analysis and Defendant’s Argument
Earlier in August 2019, five YouTubers had alleged that the LGBTQ content creators were being unfairly targeted with practices similar to those described by Bardo- demonetizing videos, placing them in the restricted mode without warning, and hiding them from search results.[3]
A series of similar events got this conflict amidst the mainstream media and a lot of content creators spoke about it. Finally in 2019, Sal also joined in as one of the plaintiffs alongside three others in the lawsuit. This is an ongoing case in the United States District Court, Northern District of California, San Jose Division. The defendants reap over 25 billion dollar revenue annually by regulating and monetizing the online video content. The advertisement system also plays a major role here. YouTube made US$15.1 billion in ad revenue in 2019. The revenue via Google advertisements is a major source of earning for both, YouTube and YouTubers. The ratio of share is around 50 percent and half of it goes to YouTube.
Since this is one of the ways as to how the content creators earn; allegedly it was regulated unfairly by YouTube, leading to demonetisation, which is a major argument from the side of the plaintiff. This is where Section 230 of the Communication Decency Act comes into the picture.
This section provides that “interactive computer service”is granted certain latitude with respect to the content that is posted thereon. Save some exceptions like screening any illegal content, sites like Twitter and YouTube are not considered publishers, and thus cannot be held liable for most of the content posted on their site. Companies are allowed to delete any content “in good faith… whether or not such material is constitutionally protected.”[4]
Google claims to be protected under the given section by saying that they are not legally liable and responsible for the content uploaded unless they are obligated to remove it. Moreover, they also claim that they have no bias against a specific gender or community, it is just how the algorithm works. After Donald Trump’s intervention and remark on Section 230, things got more complex. The Department of Justice took the defendants’ side and advised the given case shall be dismissed.
On the off chance that the claim is fruitful and Section 230 is removed, locales could be held lawfully at risk for all client produced content. Organizations that would prefer not to confront the danger of a claim could react by forcing much more tight limitations.That’s what happened with Tumblr in 2018; after new laws that covered adult contentwere enacted and enforced, the company announced that all adult content would be banned, imposing filters that falsely caught a lot of non-pornographic content.[5]
The plaintiffs are represented by Peter Obstler, a Yale Law School graduate. Being a privately owned company, YouTube has all the rights to NOT allow all forms of speech on its platform. It can be done by demonetization or restricting videos, which does not qualify as suppressing freedom. Obstler, in his argument, touched upon YouTube’s actions amounting to a contractual violation, since restricting content counteracts claims made by YouTube about being “viewpoint-neutral.”“You can’t build the largest social media public forum in the world for video content on the premise that you’re viewpoint-neutral and apply that stuff selectively based on viewpoint and identity for whatever reason,” he says.[6]
Google says that none of this is intentional, but some statements have worked the other way. One of the employees there claimed to have said that ‘they are not given ads because their content is gay and all’. YouTube immediately apologized for the same. It is not easy to figure out the intent behind either of the parties but it surely has been a major loss for the plaintiffs. It is indeed difficult to raise voice against the platform via which you earn bread. This shows the absence of malice since all they are asking for is equal recognition and standard revenues that they used to earn.
The primary contention of the debate is a crucial discussion regarding the regulation, but herein the YouTubers who filed the lawsuit are waiting for a solid answer from the website. Stephanie Frosch, a queer YouTuber with close to 370,000 subscribers, was earning approximately $23,000 a year from YouTube in 2009. Now, Frosch tells The Verge-“I am lucky if I get $100 a month.”[7]
Conclusion
The conflict is now two and a half years old. The constant battle for recognition has set a bigger example for the community as a whole. It is not merely a case now but YouTube’s reputation is attached to it now. The biggest accusation here is the discrimination which has led to further damages. The feud against giants like these has never been easy. But what makes the defendants a little weak on knees is the lack of evidence that establishes the transparency of the algorithm. Whereas the plaintiffs have provided enough evidence that shows the absurd decline in their ads, views, and revenue.
YouTube has this one simple contention that if it were to discriminate against the LGBT community, it would not have been that easy to find advertisements on popular YouTube channels by the LGBT. This contention appears faulty since YouTube’s ad-placement and content moderation decisions are a product of algorithms, which might not be versed with realities and nuances of human life. YouTube does not post advertisements about sex toys. But can its algorithms make out what is a “marital aid” and what is a prosthetic penis? How accurately can its machines distinguish between sexual content and sexuality?[8]
Obstler is firm that there exists discrimination and they are ready to appeal further.
By-
Vaibhav Chaturvedi
Lloyd Law College
[1]Julia Alexander,YouTube fights back against bias lawsuit from LGBTQ creators, The Verge, June3, 2020, available at https://www.theverge.com/2020/6/3/21278050/youtube-lawsuit-lgbtq-google-doj-section-230-trump-executive-order
[2] E.J Dickson, Inside LGBTQ Vloggers’ Class-Action ‘Censorship’ Suit Against YouTube, The Rolling Stone, November 14, 2019, available at https://www.rollingstone.com/culture/culture-features/lgbtq-youtube-lawsuit-censorship-877919/
[3]Supra note 2.
[4] Matt Baume, YouTube Faces Challenges from LGBTQ+ Creators, Them, June 4, 2020, available at https://www.them.us/story/youtube-faces-challenges-from-lgbtq-creators
[5] Supra note 4.
[6]Supra note 2.
[7]Supra note 1.
[8] YouTube: LGBT video-makers sue claiming discrimination, BBC, 15thAugust, 2019, available at https://www.bbc.com/news/technology-49343823