I don’t want to be pedantic about anything. The terms can say whatever they want - they write them. But regardless of what the TOS say, when you advertise yourself as an open platform for free speech, which YouTube certainly does, it opens you up to liability when you prove not to be that open platform. Further, if they go too far with moderation and begin censoring content over and above clear, previously set guidelines, they can lose their immunity to libel/slander lawsuits under the CDA (Communications Decency Act).
Normally I would ask you for you to please show me where in the law it says what you claim, but I am instead going to speak directly because I think it is important to be super clear on this: Wherever you are getting your information, it is a garbage source, they are lying to you, and you should find a better one.
Section 230 (which is essentially the only surviving part of the CDA; the rest was found to be unconstitutional in 1997[0]) gives interactive computer services immunity from civil claims (not just defamation) when removing material that they find objectionable, regardless of whether or not it is constitutionally protected, so long as it is done in good faith. The law is short and unambiguous[1]. There is no provision that says providers lose immunity if they go “above clear, previously set guidelines”. That is some straight made up garbage.
If what you were saying were true (again, it is not!), the “clear, previously set guidelines” are right in YouTube’s Terms. Those Terms explicitly say that they have no obligation to host your content, might change the rules, might remove your stuff, and you’re OK with that. And, even better, the issue of whether or not a provider can lose their S230 immunities through harm due to the reliance on misrepresentation of material fact was adjudicated in Green v America Online[2] and the answer was no! In that case, AOL’s member agreement was clear and binding. YouTube’s member agreement is similarly clear and binding. YouTube cannot lose their immunity in the way you claim.
Your detailed analysis is interesting. Not because of what it says, but because of what it doesn’t say. It completely ignored the fact (explicitly mentioned in my comment) that in this case - the case this entire thread is talking about - government officials pressured the company into suppressing free speech. That is not the situation in the AOL case you mentioned, and makes your entire analysis irrelevant to this case.
We aren’t talking about AOL. We are talking about a group of partisan senators pressuring a company that has a de facto monopoly in online video distribution into suppressing free speech for no reason other than “we don’t like it”.
Your analysis, even ignoring the fact that it has nothing to do with the present case, is also entirely incorrect as it relates to my comment. The CDA requires that the removal be “in good faith”. Removals that aren’t in line with “clear, previously set guidelines” can be ruled to not be in good faith. We essentially said the same thing, but you managed to hurl insults at me - saying that my “sources must be garbage” - while you said your version of it. Well done.
> It completely ignored the fact (explicitly mentioned in my comment) that in this case - the case this entire thread is talking about - government officials pressured the company into suppressing free speech.
Yes, I didn’t reply to that part because I couldn’t prove that a letter from four senators “pressured the company into suppressing free speech”, whereas I could conclusively prove that the claims I did reply to were false.
If you want me to opine on the “senators sending a letter equals government censorship” angle too, fine. It was a pretty typical letter from the senate. They make some claims, they ask some questions. Senators send letters like this often. YouTube had the option to say ‘we won’t commit to that’ and explain why, but they chose not to do that, despite having a pretty bottomless pit of lawyers and PR agents to throw at the problem. They also could easily have suggested that they were making a change due to inappropriate pressure from the senate in the press release, but they did not do that either. Any suggestion to the contrary is speculative at best.
> We aren’t talking about AOL.
You were claiming that YouTube could lose their legal immunity through some estoppel claim, and I gave you the relevant case law which explicitly rejects that interpretation of the law.
> Removals that aren’t in line with “clear, previously set guidelines” can be ruled to not be in good faith.
Please show me a single case where a court has accepted this interpretation of the immunity clause of Section 230. Please show me where in the law it says anything about “clear, previously set guidelines”.
> We are talking about a group of partisan senators pressuring a company that has a de facto monopoly in online video distribution into suppressing free speech for no reason other than “we don’t like it”.
Setting aside how there are actually quite a few places where people can post their videos (Facebook, Twitter, Vimeo, Dailymotion, Periscope, their own $5 VPS, etc.), the letter[0] is actually quite clear on the senators’ concerns, which were not “we don’t like it”:
> These videos seek to undermine our democracy and cast doubt on the legitimacy of President-elect Biden’s incoming administration. Moreover, because the current president has not committed to a peaceful transition of power, misinformation and manipulated media content on your platform may fuel civil unrest.
> you managed to hurl insults at me - saying that my “sources must be garbage”
It was not my intent to insult you personally and I’m sorry if you took it that way. I didn’t say you were garbage, I said your sources were garbage.
If you can’t accept that both the law doesn’t say what you say it does, and that courts have explicitly rejected your claimed interpretation of the law, I don’t know what else I can say. Which is, of course, the problem with misinformation and the reason why removing it is sometimes an unpleasant but necessary course of action: people latch on to falsehoods which reinforce their pre-existing world view, then refuse to accept that they might be wrong.
And to be fair to that point, I could be completely full of shit too, but it’s on you to prove that by bringing facts to this discussion and not just repeating refuted claims and making it sound like I somehow proved them by giving evidence against them.
I don’t want to be pedantic about anything. The terms can say whatever they want - they write them. But regardless of what the TOS say, when you advertise yourself as an open platform for free speech, which YouTube certainly does, it opens you up to liability when you prove not to be that open platform. Further, if they go too far with moderation and begin censoring content over and above clear, previously set guidelines, they can lose their immunity to libel/slander lawsuits under the CDA (Communications Decency Act).