Case Summary and Outcome

A Dutch Court, in preliminary relief proceedings, held that YouTube – owned by Google – was not obliged to repost a video it had removed because it violated its Covid-19 policy against medical misinformation. After a video of a Dutch Member of Parliament speaking about the national Covid-19 measures was removed by YouTube the politician unsuccessfully requested that YouTube repost it with a correction. The Court held that Google had not acted unreasonably by removing the video as it was following international, regional and national guidance on addressing medical misinformation, and that, as the right to freedom of expression is not absolute, the removal of the video was a legitimate limitation of the politician’s right.

Facts

A Dutch Member of Parliament (MEP), known for his criticism on government measures, appeared in a YouTube video in which he commented on the national Covid-19 measures. The video included snippets of another video that had been removed from YouTube because of a violation of the YouTube Covid-19 policy. On March 17, 2021, YouTube removed the main video from the platform on the grounds that it, too, violated its Covid-19 policy against misleading medical information. YouTube is owned by Google.

On April, 1, 2021, the MEP wrote to YouTube demanding that the video be reposted with a correction. YouTube responded, reiterating that the video violated its policy.

The MEP then approached the Courts, in terms of articles 6:74 (breach of contract) and 6:162 (wrongful acts) of the Dutch Civil Code, seeking preliminary relief. He was joined by Blckbox, a Dutch news platform.

Decision Overview

Judge R.A. Dudok van Heel, preliminary relief judge, delivered the judgment for the Court in preliminary relief proceedings (section Private Law). The main issue before the Court was whether deleting the video in which the MEP was interviewed about Covid-19 measures was a breach of contract or a wrongful act, and so whether the video should be reposted by Google (accompanied by a correction).

The MEP argued that in deleting the video, Google had breached the contract between YouTube and its users (in terms of article 6:74 of the Dutch Civil Code) by unmitigatedly removing a video based on YouTube’s policy. In the alternative, he submitted that if a breach of contract could not be proved, deleting the video was contrary to the requirements of reasonableness and fairness (under article 6:248-2 of the Dutch Civil Code). The MEP also argued that the removal of the video does not only lead to a breach of contract but also constitutes a wrongful act (under article 6:162 of the Dutch Civil Code) because of the violation of the freedom of expression of a politician, for whom that right is particularly weighty. He argued that YouTube abused its position of power in acting as it did and it should have been more restrained and could have taken more proportionate measures in that regard. 

Google referred to a similar judgment of the Court in preliminary relief proceedings from October 13, 2021, and argued that the video did constitute a breach of contract as it conflicted with its Covid policy. It submitted that the MEP’s freedom of expression does not override that.

The Court also referred to the October 13 2020 judgment, and noted that removal of the video could contradict the private law norms of due care which must be interpreted in light of the right to freedom of expression (indirect horizontal effect) [para. 4.9]. The Court also agreed with that judgment that the right to freedom of speech does not imply the right to a forum of one’s choice and that the mere fact that YouTube has the ability to reach huge audiences, or could even be said to have a “near-monopoly position” [para. 4.11], is insufficient to oblige Google to tolerate each and every expression made by its users [para. 4.10, 4.11]. The Court also referred to the European Court of Human Rights case of Appleby v. United Kingdom and noted that the high threshold for State intervention was not met in the present case as the MEP had had alternative channels at their disposal (which had become clear from the fact that they themselves had generated much publicity about the removal of the video). 

Similarly to the October 13, 2020 judgment, the Court considered that Google had based its policy on scientific consensus as communicated by the WHO and national health authorities, as well as on the European Commission’s call for help to combat misinformation about Covid-19 (June 2020), and on the Code of Practice on Disinformation (2018) [para. 4.10]. It noted that Google had responded to governmental instructions and could therefore not be said to have acted unreasonably: “On the contrary, it must be considered to be acting precisely in a manner ‘befitting unwritten law in society’, by following those guidelines in the fulfilment of its policies drafted in the context of public health. This may count as a legitimate restriction on freedom of expression” [para. 4.10]. The Court also noted “Google’s fundamental right to property which may serve as a legitimate limitation on the right to freedom of expression by others” [para. 4.10].

The Court acknowledged that while the right to freedom of expression of democratically elected representatives is generally considered very wide, “the MEP had had sufficient possibilities to express his views, especially on the “platform” explicitly intended for that purpose: the House of Representatives” [para. 4.12]. It also held that Google could not be expected to take less restrictive measures such as removing parts of videos instead of removing them in their entirety, as YouTube’s business model does not allow for these tailored measures, and that video cutting could give rise to other problems, e.g., related to copyright [para. 4.13].

Accordingly, the Court provisionally held that the statements were in violation of YouTube’s Covid-19 misinformation policy so that the removal did not constitute a breach of the contract between YouTube and the news channel [para. 4.7. It dismissed the MEP’s claims and ordered that both parties had to pay their own costs.