The New York Times labeled Joseph Mercola, 67, “The Most Influential Speaker of Coronavirus Misinformation Online,” in a July 24, 2021 headline. Mercola is an osteopathic physician, now practicing in Cape Coral, Florida, whom researchers have called “a key figure in the ‘Disinformation Dozen,’ a group the Nonprofit Center for Countering Digital Hate referred to when describing the “12 anti-vaxxers who are responsible for two-thirds of anti-vaccine content circulating on social media platforms.”

Mercola earned this distinction by widely disseminating easily disprovable anti-vaccine messaging, such as claiming coronavirus vaccines were a medical fraud, and claiming they alter genetic coding and turned those vaccinated into “viral protein factories that have no off-switch.”

When YouTube terminated his account without giving him notice and refusing to give him access to his videos, Mercola and his corporation Mercola.com (Mercola) sued the video-sharing company for “breach of the implied covenant of good faith and fair dealing, specific performance, unjust enrichment and conversion” and more than $75,000 in damages for violating their contract. Mercola’s promotion of natural health cures had earned him a net worth “in excess of $100 million,” according to an affidavit he filed in 2017.

Magistrate Judge Laurel Becket of the U.S. District Court for the Northern District of California sided with YouTube, and Mercola appealed to the Ninth Circuit Court of Appeal, where a three-justice panel filed an unpublished memorandum opinion that affirmed Becket’s order to dismiss Mercola’s complaints, his request for damages and his right to repossess his videos.

The opinion was written by Ninth Circuit Justices Consuelo M. Callahan and Gabriel P. Sanchez, who were joined by Senior District Circuit Judge John A. Kronstadt of the Central District of California, sitting by designation. Their decision blocked more than 300,000 subscribers to Mercola’s YouTube channel from receiving his messages that had been viewed on YouTube more than 50 million times. His articles had also been translated into Spanish and Polish and repeated in dozens of blogs, on Twitter and on Facebook, where they were read by more than 400,000 people, according to Facebook’s data on CrowdTangle, as cited in the New York Times.

The Ninth Circuit ruling centered on YouTube’s rights to terminate Mercola’s account without notice. It began by explaining the legal requirements for a complaint, which “must contain factual allegations” and if those are accepted as true, “must be plausible on its face.” The complaint must state a claim, and the court does not have to “accept as true a legal conclusion couched as a factual allegation.”

Mercola argued that the Agreement Modification Clause in his contract with YouTube required the video-sharing website to provide him with “reasonable advance notice” before it could terminate his account. YouTube said the termination violated the website’s “Community Guidelines.” Becket ruled that the Modification Clause on which Mercola relied, “did not override other provisions in the Agreement” that let YouTube immediately remove content that it considered harmful to users. In addition, the judge also found that the contract’s Limitation on Liability clause blocked Mercola’s relief.

The opinion then went into detail about why Mercola’s interpretation of the Modification Clause was incorrect. Mercola’s stance, the justices wrote, was not necessary for the clause to be meaningful and blocked other Agreement provisions that gave YouTube the “discretion to immediately terminate an account that in YouTube’s opinion violates its “Community Guidelines.” Mercola’s position was also contrary to public policy that allows the “immediate removal of content that poses serious harm.”

The next unpersuasive issue Mercola raised concerned his right to advance notice that his videos would be removed. Even though YouTube must normally provide reasonable advance notice, the Agreement states that modifications that may cause harm to YouTube users may be removed “in our discretion” and the same is true if YouTube believed “there has been conduct that could…harm any user or third party.” The Ninth Circuit concluded, “There is no conflict…because YouTube has determined that would be contrary to protecting the public.”

Mercola’s appeal thus became limited to the issues involving his request for the return of his videos. Here too, the Ninth Circuit disagreed that the plaintiff/appellant was entitled to get his videos back “as a remedy” for YouTube’s failure to give his advance notice of their removal. Again, the Ninth Circuit responded by stating, “But as there was no breach of the contract, Mercola is not entitled to any remedy.”

In conclusion, the Ninth Circuit agreed with the district court that Mercola's claims for breach of the implied covenant of good faith and fair dealing, specific performance, unjust enrichment and conversion were all properly dismissed. In addition, the court said that the plaintiff is not entitled to an opportunity to amend to add charges of unconscionability because he never asked for them in the district court. The opinion ends by saying, “…for the most part Mercola received the benefit of its bargain.”

In June 2021, just a few months before YouTube terminated Mercola’s account, President Biden had blamed online falsehoods for causing people to refrain from getting COVID-19 vaccinations and urged social media companies like Facebook to “do something about the misinformation.” While Biden later walked back some of his harshest criticism, it seems YouTube agrees in principle and did indeed “do something about the misinformation.”