Can you use the Terms of Service of Twitter, Facebook, YouTube, TikTok, or Instagram to get Defamatory Content Removed?

terms of service stamp

Today’s article idea was generated by a call from a potential client. Someone caught him on video, doing something he should not have been doing, and posted it to YouTube. The video had gone viral, and was ruining the caller’s life. He wanted to sue to get the video removed from YouTube.

I launched into a discussion of the elements of defamation, and how he would probably not be able to successfully sue the person who posted the video for defamation, given what he had told me thus far. To that he responded that he had no interest in suing the individual. He wanted to sue YouTube for violation of its own Terms of Service. He had taken the time to review YouTube’s Terms of Service, and right there in black and white they state:

“YouTube reserves the right to suspend or terminate your Google account or your access to all or part of the Service if (a) you materially or repeatedly breach this Agreement; (b) we are required to do so to comply with a legal requirement or a court order; or (c) we reasonably believe that there has been conduct that creates (or could create) liability or harm to any user, other third party, YouTube or our Affiliates.

From the caller’s point of view, the video was causing him harm, yet YouTube had refused to take it down even though he demanded that it do so. That was a clear violation of the Terms of Service, and he wanted to sue for breach of contract.

I get asked this question often, so I decided it was time for an article I can direct callers to when they are considering such an action. I’ll state the precise question so we can take a deep dive into the legal analysis.

Can you sue a social media site when it fails to comply with its own Terms of Service (sometimes called Terms of Use)?

No. Thank you. Come again. Be sure to tip your server.

The caller was way ahead of most, because he had at least taken the time to read the Terms of Service. However, they just don’t say what people think they say.

Permission to resort to an analogy?

Absent a contract for a specific term, a union agreement or some other basis, employees are employed at will. No cause is needed to fire the employee.

To get around this, terminated employees try to rely on the employee handbook, wherein it states that the employee will be warned three times before any termination, or words to that effect. The employee was fired without any warning, so the think they have a great case for breach of contract.

The problem is, if the employee is going to argue that the employee handbook is a contract, then the ENTIRE employee handbook is a contract. Right there on the first page you will find language stating, “This is not a contract, and we reserve the right to follow or not follow any provisions contained herein.” Thus, the employee is trying to argue that the handbook must be taken as contract, even though it specifically states that it is not a contract.

And so it is with the Terms of Service from the various social media websites. You can’t just cherry pick the provisions you like, while ignoring the rest.

As a public service, I have gathered here the relevant Terms of Service language from five popular social media sites. Let’s go through them to see if an action for breach of contract would be a viable means to have content removed, or at least to recover damages. These were the Terms of Service as of April 12, 2022. And even though the language may be later amended, you can be pretty certain that none of these companies will suddenly have a change of heart and rewrite the Terms in order to expose themselves to liability.

YouTube

Let’s begin with the caller’s situation, wherein he wants to force YouTube to remove a video. Read carefully what the Terms of Service actually say about removing content:

Removal of Content By YouTube

If any of your Content (1) is in breach of this Agreement or (2) may cause harm to YouTube, our users, or third parties, we reserve the right to remove or take down some or all of such Content in our discretion. We will notify you with the reason for our action unless we reasonably believe that to do so: (a) would breach the law or the direction of a legal enforcement authority or would otherwise risk legal liability for YouTube or our Affiliates; (b) would compromise an investigation or the integrity or operation of the Service; or (c) would cause harm to any user, other third party, YouTube or our Affiliates. You can learn more about reporting and enforcement, including how to appeal on the Troubleshooting page of our Help Center.

Did you see it? YouTube “reserves the right to remove” content. That imposes no duty on YouTube to take down content; it just makes clear that YouTube is free to do so at its discretion. And that’s only the half of it. As you will see, the Terms of Service from each of these sites has a provision that limits the company’s liability. YouTube puts it in all caps so you can’t claim you didn’t see it:

Limitation of Liability

EXCEPT AS REQUIRED BY APPLICABLE LAW, YOUTUBE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WILL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES, GOODWILL, OR ANTICIPATED SAVINGS; LOSS OR CORRUPTION OF DATA; INDIRECT OR CONSEQUENTIAL LOSS; PUNITIVE DAMAGES CAUSED BY:

ERRORS, MISTAKES, OR INACCURACIES ON THE SERVICE;
PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF THE SERVICE;
ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE;
ANY INTERRUPTION OR CESSATION OF THE SERVICE;
ANY VIRUSES OR MALICIOUS CODE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY;
ANY CONTENT WHETHER SUBMITTED BY A USER OR YOUTUBE, INCLUDING YOUR USE OF CONTENT; AND/OR
THE REMOVAL OR UNAVAILABILITY OF ANY CONTENT.
THIS PROVISION APPLIES TO ANY CLAIM, REGARDLESS OF WHETHER THE CLAIM ASSERTED IS BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.

YOUTUBE AND ITS AFFILIATES’ TOTAL LIABILITY FOR ANY CLAIMS ARISING FROM OR RELATING TO THE SERVICE IS LIMITED TO THE GREATER OF: (A) THE AMOUNT OF REVENUE THAT YOUTUBE HAS PAID TO YOU FROM YOUR USE OF THE SERVICE IN THE 12 MONTHS BEFORE THE DATE OF YOUR NOTICE, IN WRITING TO YOUTUBE, OF THE CLAIM; AND (B) USD $500.

Allow me to break out the important language from all of the above:

“YOUTUBE . . .WILL NOT BE RESPONSIBLE FOR . . . ANY CONTENT.”

Not content to limit liability for content posted by others, YouTube even states that it will not be responsible for content it posts. Thus, at least according to its own Terms of Service, YouTube can publish that you are a “no good, lying pony soldier,” and still be free from liability.

This is where things get strange. You might think that there could never be a situation where YouTube could defame you with impunity, based on its own self-serving Terms of Service. But when you post on one of these social media sites, you agree to the Terms of Service. Here, under a strict interpretation of the Terms of Service, you have agreed that YouTube can defame you.

Now, in reality, YouTube has no reason to post a defamatory video about you. But YouTube does put disclaimers under videos that don’t share the company’s political views. This language would prevent you from claiming the disclaimer is defamatory, or caused you emotional distress, or whatever.

Facebook

3. Limits on liability

We work hard to provide the best Products we can and to specify clear guidelines for everyone who uses them. Our Products, however, are provided “as is,” and we make no guarantees that they always will be safe, secure, or error-free, or that they will function without disruptions, delays, or imperfections. To the extent permitted by law, we also DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We do not control or direct what people and others do or say, and we are not responsible for their actions or conduct (whether online or offline) or any content they share (including offensive, inappropriate, obscene, unlawful, and other objectionable content).

We cannot predict when issues might arise with our Products. Accordingly, our liability shall be limited to the fullest extent permitted by applicable law, and under no circumstance will we be liable to you for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Terms or the Facebook Products, even if we have been advised of the possibility of such damages. Our aggregate liability arising out of or relating to these Terms or the Facebook Products will not exceed the greater of $100 or the amount you have paid us in the past twelve months.

4. Disputes

We try to provide clear rules so that we can limit or hopefully avoid disputes between you and us. If a dispute does arise, however, it’s useful to know up front where it can be resolved and what laws will apply.

For any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms or the Meta Products (“claim”), you agree that it will be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim, and that the laws of the State of California will govern these Terms and any claim, without regard to conflict of law provisions.

Again, allow me to pull out the key language: “We are not responsible for . . . any content . . .”

Instagram

Who Is Responsible if Something Happens.

Our Service is provided “as is,” and we can’t guarantee it will be safe and secure or will work perfectly all the time. TO THE EXTENT PERMITTED BY LAW, WE ALSO DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

We also don’t control what people and others do or say, and we aren’t responsible for their (or your) actions or conduct (whether online or offline) or content (including unlawful or objectionable content). We also aren’t responsible for services and features offered by other people or companies, even if you access them through our Service.

Our responsibility for anything that happens on the Service (also called “liability”) is limited as much as the law will allow. If there is an issue with our Service, we can’t know what all the possible impacts might be. You agree that we won’t be responsible (“liable”) for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Terms, even if we know they are possible. This includes when we delete your content, information, or account. Our aggregate liability arising out of or relating to these Terms will not exceed the greater of $100 or the amount you have paid us in the past twelve months.

You agree to defend (at our request), indemnify and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with these Terms or your use of the Service. You will cooperate as required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.

Bottom line: “We aren’t responsible for . . . actions or conduct (whether online or offline) . . .” On top of that, if someone sues Twitter over something you posted, even though Twitter would have no liability, you would have to provide their defense.

TikTok

10. LIMITATION OF LIABILITY

NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

SUBJECT TO THE PARAGRAPH ABOVE, WE SHALL NOT BE LIABLE TO YOU FOR:

(I) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY);
(II) ANY LOSS OF GOODWILL;
(III) ANY LOSS OF OPPORTUNITY;
(IV) ANY LOSS OF DATA SUFFERED BY YOU; OR
(V) ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU. ANY OTHER LOSS WILL BE LIMITED TO THE AMOUNT PAID BY YOU TO TIKTOK WITHIN THE LAST 12 MONTHS.

ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:

ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICE;
ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR
YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
PLEASE NOTE THAT WE ONLY PROVIDE OUR PLATFORM FOR DOMESTIC AND PRIVATE USE. YOU AGREE NOT TO USE OUR PLATFORM FOR ANY COMMERCIAL OR BUSINESS PURPOSES, AND WE HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.

IF DEFECTIVE DIGITAL CONTENT THAT WE HAVE SUPPLIED DAMAGES A DEVICE OR DIGITAL CONTENT BELONGING TO YOU AND THIS IS CAUSED BY OUR FAILURE TO USE REASONABLE CARE AND SKILL, WE WILL EITHER REPAIR THE DAMAGE OR PAY YOU COMPENSATION. HOWEVER, WE WILL NOT BE LIABLE FOR DAMAGE THAT YOU COULD HAVE AVOIDED BY FOLLOWING OUR ADVICE TO APPLY AN UPDATE OFFERED TO YOU FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY YOU FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.

THESE LIMITATIONS ON OUR LIABILITY TO YOU SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

YOU ARE RESPONSIBLE FOR ANY MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICE, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

Summary:  “WE SHALL NOT BE LIABLE TO YOU FOR: . . . ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU.”

Twitter

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TWITTER ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE TWITTER ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID TWITTER, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE TWITTER ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

Short version: “TWITTER ENTITIES SHALL NOT BE LIABLE FOR . . . ANY CONDUCT OR CONTENT . . .”

Don’t lose sight of the point of this article. I am not saying there is never a circumstance whereby you might have an action against a social media site. Due to the Communications Decency Act, such an action would be very unlikely, but the point here was to address whether the sites’ Terms of Service could make a breach of contract action a possibility. As I hope this article has shown, that is almost certain to be a dead end.

Here is an example from a case decided a few months ago. In this case, the plaintiff (“Murphy”) was upset that her Twitter account had been suspended, and claimed that the suspension violated Twitter’s Terms of Service. She had to concede that her claim fell under the Terms of Service, and that the Terms allow Twitter to suspend accounts as it sees fit. But she tried to escape them by arguing that the Terms were unconscionable. This portion of the court decision provides a great summary of the law as regards the Terms of Service being employed by these various social media sites:

Her claim necessarily fails, however, because Twitter’s terms of service expressly state that they reserve the right to “suspend or terminate [users’] accounts … for any or no reason” without liability. (See Cox v. Twitter) [plaintiff’s breach of contract claim against Twitter for violation of its terms of service in removing content and suspending his account were clearly barred by terms of user agreement]; Ebeid v. Facebook [breach of implied covenant of good faith and fair dealing failed because Facebook had contractual right to remove any post at Facebook’s sole discretion].)

Waivers of liability that are “clear, unambiguous and explicit” bar claims that expressly fall within their scope. (Cohen v. Five Brooks Stable.) The clear terms of Twitter’s user agreement preclude a claim for breach of contract based on the allegations of Murphy’s complaint.

Murphy does not dispute that her claims fall within the scope of Twitter’s liability waiver provision but contends that the terms are unconscionable and that the court should strike those provisions and enforce the remainder of the contract. Murphy fails, however, to allege any facts demonstrating the terms are procedurally or substantively unconscionable.

A contract term may be substantively unconscionable if it is “overly harsh,” “unduly oppressive,” “so one-sided as to shock the conscience,” or “unfairly one-sided.” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244.) Murphy alleges Twitter’s terms of service are substantively unconscionable because Twitter could use them to suspend or terminate user accounts for petty, arbitrary, irrational, discriminatory, or unlawful reasons. Terms allowing service providers to “discontinue service, or remove content unilaterally,” however, are routinely found in standardized agreements and enforced by courts. (Song fi, Inc. v. Google, Inc. (D.D.C. 2014) 72 F.Supp.3d 53, 63.) “Unless there is some evidence of ‘egregious’ tactics, … ‘the party seeking to avoid the contract will have to show that the terms are so extreme as to appear unconscionable according to the mores and business practices of the time and place.”

Courts have also recognized service providers that offer free services to Internet users may have a legitimate commercial need to limit their liability and have rejected claims that such limitations are so one-sided as to be substantively unconscionable. (See Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 125-126 [limitation of liability clauses “are appropriate when one party is offering a service for free to the public”; plaintiff failed to state a claim for breach of contract because YouTube’s terms of service limited its liability for deleting her video]; Darnaa, LLC v. Google, LLC (9th Cir. 2018) 756 Fed.Appx. 674, 676 [YouTube’s terms of service not substantively unconscionable because it offers video streaming services at no cost to user]; see also Song fi, Inc., 72 F.Supp.3d at pp. 63-64 [finding YouTube had legitimate commercial need to include forum selection clause].) In light of Murphy’s allegations that Twitter provides its services to millions of users around the world for free, the contract term allowing it to suspend or terminate users’ accounts for any or no reason, absent other factual allegations of unfairness, does not shock the conscience or appear unfairly one-sided.

Murphy v. Twitter, Inc., 60 Cal. App. 5th 12, 35 (2021).

 

 

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Aaron Morris
Morris & Stone, LLP
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