Case Summary and Outcome

The Amsterdam District Court denied a motion to reinstate two videos—about the efficiency of hydroxychloroquine to treat COVID-19—on Café Weltschmerz’s YouTube channel. Both videos contained interviews between Plaintiff 1 and Plaintiff 2, who claimed that hydroxychloroquine (HCQ) is a working and proven drug against COVID-19. YouTube removed the videos from their platform arguing that they breached YouTube’s COVID-19 policy. Plaintiff 1 and Plaintiff 2 brought legal action against Google Ireland and Google Netherlands (collectively referred to as YouTube) claiming that the video-sharing platform is in breach of contract towards Café Weltschmerz as a user of their service. Furthermore, the plaintiffs held that YouTube violated their right to freedom of expression under Art. 10 of the European Convention on Human Rights. The Amsterdam District Court considered that the content in both videos was disinformation that spread inaccurate medical information about COVID-19 and could potentially be harmful and dangerous since the statements in the videos were expressed in an unnuanced manner. The Court also held that YouTube’s COVID-19 policy is consistent with the Code of Practice on Disinformation established by the European Commission, and therefore the Court maintained that the removal of the videos by YouTube is a valid restriction on the right to freedom of expression of Plaintiff 1 and Plaintiff 2.

Facts

Café Weltschmerz is a citizen journalism platform. It has a YouTube account and channel on which it discusses a variety of current social issues. By agreeing to the Terms of Service set by YouTube during the registration of their account, Café Weltschmerz had a closed agreement with YouTube that included, in addition to YouTube’s Terms of Service and Community Guidelines, rules on policy, security, and copyright.

YouTube’s Terms of Service hold that it will remove content from their platform that they reasonably believe to either violate the Agreement between them and the users of their platform or harm YouTube, their users or third parties. Examples of content that is usually deleted include misleading information, incitement to hatred, intimidation and violence, pornography, and the promotion of medical treatments or medicines deemed as dangerous.

On 20 May 2020, YouTube, after agreeing to the Code of Practice on Disinformation drawn up by the European Commission to combat “fake news” and disinformation online, added a “Policy against misleading medical information on COVID-19” to its Community Guidelines. This addition included the restriction of content considered to be misleading medical information that conflicts with the medical information on COVID-19 presented by the World Health Organization (WHO), or local health authorities in relation to the treatment, prevention, diagnosis and infection of COVID-19. Examples of prohibited content include “content that discourages viewers from seeking medical help and encourages them to take drugs or treatments against COVID-19”; “content claiming that COVID-19 does not exist and that people do not die from it”; “content encouraging viewers to use home remedies instead of seeking medical help from a doctor or hospital”; “content encouraging viewers to pray or perform rituals instead of seeking medical help”; “content claiming there is a vaccine for the coronavirus or a proven cure”; “content claiming that there is currently medication available that will prevent you from contracting the coronavirus”; and “other content in which viewers are discouraged from seeking medical professional or medical advice.” [para. 2.5]

On 29 May, 2020 and 3 July, 2020, Plaintiff 1, a journalist, interviewed Plaintiff 2, a general practitioner. These interviews were posted as videos on the YouTube channel of Café Weltschmerz. The first interview was removed by YouTube four days after it was published, while the second was deleted after two days. Via a default notification, YouTube informed Café Weltschmerz about its decision to remove the videos and informed the channel about the option to appeal YouTube’s decision.

In these videos, Plaintiff 1 and Plaintiff 2 claimed that hydroxychloroquine was a medically tested effective drug against COVID-19 in combination with other medicaments.

On August 26, 2020, Plaintiff 1 and Plaintiff 2 brought legal action against Google Ireland and Google Netherlands (jointly referred to as YouTube) complaining about the removal of the two videos described above, posted on the YouTube channel of Café Weltschmerz. Plaintiff 1 and Plaintiff 2 request the reinstatement of the two videos, that the videos remain on the YouTube channel of Café Weltschmerz, and to have the videos “appear in the search engine search results in a common way.” [para. 3.1] In addition, Plaintiff 1 and Plaintiff 2 requested the Court to “direct YouTube to rescind its policy against misleading medical information on COVID-19 and not to act in accordance with this directive.” [para. 3.1]

Decision Overview

Judge C.M.E de Koning delivered the judgement for the Amsterdam District Court. The main issue that the Court analyzed was whether the videos containing interviews, posted on the YouTube channel of Café Weltschmerz—in which hydroxychloroquine was presented as an efficient treatment against COVID-19—can be considered disinformation, and if so if YouTube is allowed to remove them based on their COVID-19 policy—created after the platform agreed to the European Commission’s Code of Practice on Disinformation.

Plaintiff 1 and Plaintiff 2 argued that by removing the contested videos, YouTube was in breach of contract towards Café Weltschmerz, which was in turn an unlawful action towards Plaintiff 1 and Plaintiff 2. The plaintiffs also said that YouTube had a societal function and due to its position as a platform that is used worldwide, had the obligation to safeguard the right to freedom of expression of their users and third parties. YouTube’s COVID-19 policy, both plaintiffs argued, was too restrictive. Moreover, the plaintiffs criticized YouTube’s policy enforcement, holding that it was censoring content that differed from the views of the WHO AND the National Institute for Public Health and the Environment (RIVM) in the Netherlands. By committing censorship, via their strict Covid-19 policy, the plaintiffs considered that YouTube breached a “duty of care in the contractual relationship [with] Café Weltschmerz. A breach of duty of care in that relationship may also constitute a – derivative – tort against third parties, in this case [Plaintiff 1] and [Plaintiff 2].” [para. 4.9]

Plaintiff 1 and Plaintiff 2 also opined that as the debate surrounding the treatment and mitigation of COVID-19 was still in development, it was not evident that YouTube acted with the intention to protect public health. As such, the plaintiffs argued, criticism against the view presented by the RIVM and the WHO should be possible and “cannot be considered to be misinformation.” [para. 3.2] While both plaintiffs agreed that content that is in conflict with public health can and should be removed from the Internet, they maintained that the content of their interviews, presented in the videos posted on Café Weltschmerz’s YouTube channel, was part of the public debate and was not in conflict with public health.

For its part, YouTube argued that on May 20, 2020, it supplemented its Community Guidelines with the “Policy Against Misleading Medical Information on COVID-19” due to the outbreak of the coronavirus worldwide. Based on this policy, YouTube prohibited on its platform misleading medical information contradicting the view of the World Health Organization (WHO), or local health authorities, on the prevention, infection, diagnosis, or treatment of the COVID-19 virus, as well as content related to COVID-19 potentially leading to a significant risk of serious harm.

The platform considered that the videos of the interviews between Plaintiff 1 and Plaintiff 2 exhibited content that was harmful and dangerous, incorrect information, and that the videos were removed based on YouTube’s COVID-19 policy. YouTube argued that the claims on the videos were not only unproven but that the existing consensus in the medical scientific debate on the efficacy of HCQ against COVID-19 is that HCQ does not work and might even be harmful. According to the Health Care Inspectorate, HCQ should also no longer be used as a treatment for COVID-19 infection.

YouTube also explained that its assessment of the permissibility of content is generally done via automated systems and a complaint-based system. YouTube confirmed that in the process of moderating the contested videos human review was involved. Furthermore, the video-sharing platform held that its right to make certain policy choices on which expressions are permissible stands in contrast to the right to freedom of expression of its users. In this line of reasoning, YouTube said that they have the freedom, at least in relation to the subject of COVID-19, to delete content that differs from the view of the WHO and RIVM . YouTube mentioned that its COVID-19 policy is in line with the request made by the European Commission —to social media platforms— to counter the spreading of harmful, inaccurate, and dangerous information online.

The Court began its argument by determining the extent of responsibility placed on YouTube in both safeguarding the right to freedom of expression of its users as well as its responsibility in countering the dissemination of disinformation and “fake news” in the platform. The Court agreed with the plaintiffs that YouTube has a high degree of responsibility in safeguarding the right to freedom of expression of its users. YouTube, the Court held, plays a predominant role in facilitating the online public debate necessary in a democratic society since it is one of the largest search engines and online platforms with a global reach.

The Court highlighted the fact that, based on their agreement to the Code of Practice on Disinformation established by the European Commission, YouTube’s content moderation could potentially compromise the right to freedom of expression of its users. The Court considered that a “strict application by YouTube of its policy of only allowing content that is in line with the views of WHO and RIVM is too limited and not allowed in connection with the horizontal effect of freedom of expression.” [para. 4.10] Since YouTube plays a dominant role in facilitating the online public debate, the Court maintained that it was inconsistent with the right to freedom of expression to only allow content aligned with the information provided by the aforementioned organizations “and not otherwise critical content.” [para. 4.10] However, as YouTube’s COVID-19 policy is consistent with the guidance of the European Commission, the Court decided in this preliminary judgment that the content deletion made by YouTube based on its COVID-19 policy does not constitute, per se, an impermissible infringement of freedom of expression.

The Court then analyzed if the content presented in the videos posted on Café Weltschmerz’s YouTube channel could be regarded as disinformation, which, in turn, would allow YouTube to remove the videos from its platform.

Subsequently, the Court underscored the fact that national institutions discredited the efficacy of hydroxychloroquine (HCQ) in the Netherlands and discontinued its use as a treatment for COVID-19 in Dutch hospitals on May 1, 2020, due to its side effects, such as depression, cardiac arrhythmias, and psychosis. This indicated, for the Court, that claims made regarding hydroxychloroquine (HCQ) as a treatment for COVID-19, without scientifically based testing, conclusive evidence, and available without a prescription, could be considered potentially harmful and dangerous misinformation to the public.

In this context, the Court concluded that if Plaintiff 2 wished to hold a debate on the effectiveness of hydroxychloroquine (HCQ), as a drug against COVID-19 infection, he should have formulated his statements in a nuanced manner. This was not the case here. The Court decided that due to the way in which the plaintiff expressed his statements on hydroxychloroquine (HCQ) during the interviews, it was clear that the removed content “contain[ed] incorrect information that is potentially harmful and dangerous.” [para. 4.15] As such, the Court determined that the content presented in the video was not part of the public debate, and could be considered as disinformation.

Thus, the Court denied the motion brought by Plaintiff 1 and Plaintiff 2 to reinstate the videos on Café Weltschmerz’s YouTube channel.