• by Wendy Davis  @wendyndavis, May 29, 2024

Siding against anti-vax doctor Joseph Mercola, a federal appeals court on Wednesday refused to revive his lawsuit claiming that YouTube wrongly terminated his account and deprived him of access to his videos. 

Mercola was one of several high-profile vaccine critics whose accounts were abruptly taken down by YouTube in September 2021, when the company banned videos that claimed vaccines cause harmful side effects or don't work.

He subsequently claimed in a complaint brought in federal court in the Northern District of California that Google broke its contract with him by canceling his YouTube account -- and preventing him from accessing the videos he had uploaded -- without “reasonable” notice.

Mercola pointed to language in YouTube's terms of service that said the company would provide “reasonable advance notice of any material modifications” to the user agreement.

U.S. District Court Magistrate Judge Laurel Beeler dismissed Mercola's complaint at an early stage in September, effectively ruling that even if his allegations were true, they wouldn't show that YouTube broke its contract. She said YouTube's terms provided that the company wasn't obligated to host content, and that it may remove content that it believed could harm the company or its users.

Mercola then appealed to the 9th Circuit Court of Appeals, where he repeated his argument that Google was required to have notified him before terminating his channel.

A three-judge panel disagreed, writing that Google's terms of service provided that the company could take down any content it reasonably believed was harmful.

“In September 2021, when YouTube terminated Mercola’s account, it was reasonable (even if incorrect) to consider 'anti-vaccine' postings to be harmful to the public,” the judges wrote. They didn't elaborate further on that sentence.

Mercola also argued he should have been able to revise his complaint by alleging that YouTube's contract was unfairly one-sided.

The panel rejected that argument as well.

“Mercola, an incorporated entity, contracted with YouTube for a non-essential service, the language in the contract is not overly technical, and it appears that for the most part Mercola received the benefit of its bargain,” the judges wrote.