Case Summary and Outcome
The District Court of Amsterdam (“the Court”) held that YouTube was under no obligation to re-upload two videos on its platform containing interviews with a general practitioner about controversial Covid-19 medication. YouTube had removed these videos earlier for violating the platform’s Covid-19 misinformation policy. Although the District Court considered YouTube’s Covid-19 policy too stringent in view of the right to freedom of expression, it found that the videos had been lawfully removed since they contained “incorrect and potentially harmful and dangerous misinformation” which was not part of public debate.
The Plaintiffs, a journalist and a general practitioner (GP), were featured in two videos on the YouTube channel of Café Weltschmerz, a citizen journalism platform that aims to discuss current societal issues. The Defendants, Google Ireland Limited and Google Netherlands B.V., operate the global video-sharing platform YouTube in the Netherlands and worldwide. In May and July 2020, Café Weltschmerz uploaded two videos in which the journalist interviewed the GP about the effectiveness of hydroxychloroquine (HCQ) as a treatment for Covid-19. A couple of days after the uploads, the videos were removed by YouTube for violating the platform’s Covid-19 misinformation policy since it does not allow content that poses a significant risk of serious harm, nor does it allow content spreading medical misinformation that contradicts the World Health Organization’s (WHO) or local health authorities’ information about treatment, prevention, diagnosis, and transmission of Covid-19. Soon after the removal, the journalist and the GP lodged summary proceedings with the Amsterdam District Court against YouTube seeking a judicial order to reinstate the videos on the platform and to deactivate the Covid-19 policy.
The main issue before the Court was deciding whether YouTube, by removing the videos from the Café Weltschmerz channel, had committed a breach of contract and/or had acted unlawfully against the journalist and GP (within the meaning of article 6:162 of the Dutch Civil Code) and was therefore, under an obligation to reinstate the video [para. 4.1].
The Plaintiffs claimed that the policy according to which content contradictory to the views of the WHO and national health organisations [in the Netherlands: the National Institute for Public Health and the Environment (RIVM)] must be removed, was too stringent. They argued that the removal of videos based on such policy therefore constituted an unjustifiable infringement on the right to freedom of expression. According to the Plaintiffs, a worldwide platform like YouTube has a unique duty of care to safeguard users’ and third parties’ right to freedom of expression. By merely displaying content in line with the views of government organizations, the Plaintiffs believed that YouTube takes a position in public debate and risks becoming “the government’s mouthpiece.” The journalist and GP also stated that the debates about effective cures against Covid-19 were still ongoing and that many doctors and scientists considered HCQ an effective medicine against the virus. Therefore, YouTube could not necessarily be said to have protected public health by implementing Covid-19 content moderation policies. According to the Plaintiffs, it should have been possible to criticize the views of the WHO and RIVM without being accused of spreading misleading information.
YouTube, on the other hand, submitted that in principle it welcomes all sorts of speech and interferes with user-generated content only when certain interests – in this case, the interests protected by the EU Code of Practice on Disinformation – are at stake. Encouraged by the European Commission, the platform drew the line at the dissemination of incorrect, harmful and dangerous information. YouTube stated that there was a scientific consensus that HCQ was not an effective medicine against Covid-19 and could even be harmful to people’s health. It referred to the Dutch Healthcare Inspectorate, which had prohibited the prescription of HCQ for Covid-19 treatment. In addition, YouTube invoked its right as a private company to make policy choices regarding the content it allowed and blocked on its platform.
The Court first concluded that a strict implementation by YouTube of its policy to solely allow content in line with the views of the WHO and RIVM was too stringent and – given the horizontal effect of freedom of expression – could not permitted [para. 4.10]. Considering YouTube’s position as one of the most important online video-sharing platforms on the Internet and its role in public debate and democratic society, it would be inconsistent with the right to freedom of expression to solely allow content in keeping with the views of the WHO and RIVM, but to block other critical content. YouTube users may expect a broad range of content and not just the opinions of a group of experts who provide governmental organizations with advice. The Court further recognized that there was still a lot of ongoing research about the prevention and treatment of Covid-19, and that even the WHO and RIVM constantly kept adjusting their guidelines and recommendations.
At the same time, the Court observed that the restriction of “incorrect, harmful and dangerous information” did not really constitute an unjustifiable infringement on the right to freedom of expression, also taking into account the societal responsibility of major online platforms [para. 4.13]. A fundamental change in YouTube’s policy – which responded to the European Commission’s call to tackle Covid-19 misinformation – did not, therefore, “go too far.” The key question, according to the Court, was how YouTube implemented its policy in practice.
In its assessment of the videos, the Court considered that the Dutch Healthcare Inspectorate had prohibited the prescription of HCQ as a treatment for Covid-19. It also referred to a study on the effectiveness of HCQ performed in a Dutch hospital between March and April 2020, which had been ended prematurely because of side-effects such as depression, cardiac arrhythmia and psychoses. According to the Court, the discontinuation of this study indicated that the drug – if accepted at all – must be prescribed under medical supervision and in the correct doses. It stated that “a doctor who claims, without conclusive evidence and scientifically-based testing, that HCQ or an alternative drug which can be obtained without prescription, works [against Covid-19], is wrongly informing the public,” and that spreading this type of misinformation could be “potentially harmful and dangerous” [para. 4.15]. In other words, the Court held that unsubstantiated claims regarding the alleged effects of a medicine for Covid-19 treatment could be considered as misinformation, and such content may be removed lawfully.
The fact that the GP had successfully used HCQ on 10 of his patients, and that he truly believed in the effectiveness of the drug (if used at an early stage of the disease), and that he wanted to have a public debate about it, did not release him from the obligation as established by the Court to articulate his statements “in a nuanced way” [para. 4.15]. The GP had failed to do so.
Overall, the Court decided that the statements the GP had made during the interviews could not be considered as part of public debate, but rather, as incorrect, potentially harmful and dangerous information. Especially being a doctor, the GP should have realized that. Thus, YouTube was correct in removing the videos and was under no obligation to reinstate them or deactivate the Covid-19 policy. As a result, the Plaintiffs were ordered to pay legal costs to YouTube amounting to € 1,636.