Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 54 of 71 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 1, Honorable Brian C. Walsh Presiding JeeJee Vizconde, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408.882.2150 To contest the ruling, call (408) 808-6856 before 4:00 P.M. Please state your case name, case number, the name of the attorney and contact number. It would also be helpful if you could identify the specific portion or portions of the tentative ruling that will be contested. Thank you. Court Reporters are not provided. Please consult our Court’s website, www.scscourt.org, for the rules, policies and required forms for the court’s appointment by stipulation of privately-retained court reporters. LAW AND MOTION TENTATIVE RULINGS DATE: OCTOBER 25, 2019 TIME: 9 A.M. PREVAILING PARTY SHALL PREPARE THE ORDER (SEE RULE OF COURT 3.1312) LINE # CASE # CASE TITLE RULING CLICK on LINE 1 for Ruling. LINE 1 19CV340667 Prager University vs. Google LLC, et al LINE 2 19CV341522 CLICK on LINE 2 for Ruling. In Re Alphabet, Inc. Shareholder Derivative Litigation [ LEAD CASE; Consolidated with Case Nos. 19CV343670, 19CV343672, 19CV344792, 19CV346737 ] LINE 3 17CV315727 Hancock vs. Magnolia HI- CLICK on LINE 3 for Ruling. Fi LLC, et al LINE 4 19CV348674 In Re Cloudera, Inc. Securities Litigation ( formerly Lazard vs. Cloudera Inc., et al ) LEAD CASE / Consolidated Action CLICK on LINE 4 for Ruling. LINE 5 19CV347622 InESS Solutions, Inc. vs. Cisco Systems Inc. OFF CALENDAR LINE 6 LINE 7 LINE 8 LINE 9 LINE 10 LINE 11 LINE 12 Add. 27 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 55 of 71 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 1, Honorable Brian C. Walsh Presiding JeeJee Vizconde, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408.882.2150 To contest the ruling, call (408) 808-6856 before 4:00 P.M. Please state your case name, case number, the name of the attorney and contact number. It would also be helpful if you could identify the specific portion or portions of the tentative ruling that will be contested. Thank you. Court Reporters are not provided. Please consult our Court’s website, www.scscourt.org, for the rules, policies and required forms for the court’s appointment by stipulation of privately-retained court reporters. LAW AND MOTION TENTATIVE RULINGS LINE 13 Add. 28 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 56 of 71 Calendar Line 1 Case Name: Prager University v. Google LLC, et al. Case No.: 19-CV-340667 This action arises from Prager University’s allegations that YouTube, LLC and its parent company Google LLC have unlawfully restricted content created by Prager on YouTube, defendants’ social media and video sharing platform. Before the Court are defendants’ demurrer to the operative First Amended Complaint (“FAC”) and Prager’s motion for a preliminary injunction. Both motions are opposed. I. Factual and Procedural Background As alleged in the FAC, Prager is a non-profit, 501(c)(3) tax exempt, educational organization that promotes discussion on historical, religious, and current events by disseminating educational videos intended for younger, student-based audiences between the ages of 13 and 35. (FAC, ¶ 10.) The videos depict scholars, sources, and other prominent speakers who often espouse viewpoints in the mainstream of conservative thought. (Ibid.) Defendants operate YouTube as the largest and most profitable mechanism for monetizing free speech and freedom of expression in the history of the world, generating $10 to 15 billion in annual revenue by monetizing the content of users like Prager who are invited to post videos to YouTube. (FAC, ¶ 11.) Since its inception, Prager has posted more than 250 of its videos to YouTube. (Id. at ¶ 39.) A. The Alleged Content Restriction Scheme To induce users like Prager to upload video content, defendants represent that YouTube is a public place for free speech defined by “four essential freedoms” that govern the public’s use of the platform: 1. Freedom of Expression: We believe people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities. 2. Freedom of Information: We believe everyone should have easy, open access to information and that video is a powerful force for education, building understanding, and documenting world events, big and small. 3. Freedom of Opportunity: We believe everyone should have a chance to be discovered, build a business and succeed on their own terms, and that people—not gatekeepers—decide what’s popular. 4. Freedom to Belong: We believe everyone should be able to find communities of support, break down barriers, transcend borders and come together around shared interests and passions. Add. 29 1 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 57 of 71 (FAC, ¶ 12.) Defendants further promise that YouTube is governed by content-based rules and filtering which “apply equally to all,” regardless of the viewpoint, identity, or source of the speaker. (Id. at ¶ 13.) However, contrary to these representations, defendants censor, restrict, and restrain video content based on animus, discrimination, profit, and/or for any other reason “or no reason.” (FAC, ¶ 14.) According to Prager, an internal memo and presentation entitled “The Good Censor” shows that defendants have secretly decided to “ ‘migrate’ away from [serving as] a hosting platform …where the public is invited to engage in freedom of expression” to become a media company that profits “by promoting Defendants’ own, or their preferred content through the exercise of unfettered discretion to censor and curate otherwise public content.” (Id. at ¶¶ 56-65.) To effectuate their discriminatory practices, defendants use clandestine filtering tools, including algorithms and other machine-based and manual review tools, that are embedded with discriminatory and anti-competitive animus-based code, including code that is used to identify and restrict content based on the identity, viewpoint, or topic of the speaker. (Id., ¶ 19.) They also “ensure that the YouTube employees charged with administering the content filtering and regulation scheme … operate in a dysfunctional and politically partisan workplace environment.” (Id. at ¶ 20.) Against this background, Prager’s rights under California law have been violated by two unlawful content-based restrictions: (i) “Restricted Mode,” a filtering protocol that defendants use to block what they deem, in their sole, unfettered discretion, to be “inappropriate” for “sensitive” audiences and (ii) “Advertising Restrictions,” a content-based video advertising restriction policy that prohibits potential advertisers from accessing videos that defendants deem “inappropriate” for advertising. (FAC, ¶ 17.) Defendants use these mechanisms as a pretext to restrict and censor Prager’s videos, even though the content of its videos complies with YouTube’s Terms of Service, Community Guidelines, and criteria for “sensitive audiences” and advertisers, while they fail to restrict the content of other preferred users, content partners, and content produced by defendants themselves that is not compliant. (Id. at ¶¶ 18, 23.) Defendants have provided no rational basis for restricting Prager’s content while allowing similar or noncompliant content to go unrestricted. (Id. at ¶ 25.) B. Restricted Mode According to defendants, Restricted Mode is intended “to help institutions like schools as well as people who wanted to better control the content they see on YouTube with an option to choose an intentionally limited YouTube experience.” (FAC, ¶ 68.) Viewers can choose to turn Restricted Mode on from their personal accounts, but it may also be turned on by system administrators for libraries, schools, and other institutions or workplaces. (Ibid.) Defendants estimate that about 1.5 percent of YouTube’s daily views (or approximately 75 million views per day) come from individuals using Restricted Mode. (Id. at ¶ 69.) When Restricted Mode is activated, a video’s name, creator or subject, and content, along with any other information related to the video, are blocked, as if the video did not exist on the YouTube platform. (Id. at ¶ 68.) Defendants claim to restrict content in Restricted Mode based upon their “Restricted Mode Guidelines,” which identify five criteria for determining whether content warrants restriction: Add. 30 2 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 58 of 71 1. Talking about drug use or abuse, or drinking alcohol in videos; 2. Overly detailed conversations about or depictions of sex or sexual activity; 3. Graphic descriptions of violence, violent acts, natural disasters and tragedies, or even violence in the news; 4. Videos that cover specific details about events related to terrorism, war, crime, and political conflicts that resulted in death or serious injury, even if no graphic imagery is shown; 5. Inappropriate language, including profanity; and 6. Video content that is gratuitously incendiary, inflammatory, or demeaning towards an individual or group. (FAC, ¶ 70.) Videos are initially restricted through an automated filtering algorithm that examines certain “signals” like the video’s metadata, title, and language, or following manual review if a video is “flagged” as inappropriate by public viewers. (Id., ¶ 71.) YouTube also publishes “Community Guidelines” and “Age Based Restriction” guidelines similar to its “Restricted Mode Guidelines”; however, content that complies with these guidelines may nevertheless be subject to Restricted Mode. (FAC, ¶¶ 72-73.) Prager’s videos have never been age restricted or found to violate YouTube’s Community Guidelines. (Id. at ¶ 75.) Defendants have admitted that they make “mistakes in understanding context and nuances when [assessing] which videos to make available in Restricted Mode.” (FAC, ¶ 91.) For example, on March 19, 2017, they publicly admitted that they improperly restricted videos posted or produced by members of the LGBTQ community and changed their policy, filtering algorithm, and manual review policies in response to complaints from this community. (Id. at ¶¶ 94-96.) However, Prager alleges that defendants have continued to improperly restrict videos by LGBTQ users, which is evidence of viewpoint animus. (Id. at ¶¶ 97-98.) C. Advertising Restrictions Defendants also restrict users like Prager “from monetizing or boosting the reach or viewer distribution of [their] videos.” (FAC, ¶ 78.) Prager alleges that these restrictions are ostensibly governed by the “AdSense program policies,” which it suggests are “similar[ly] vague, ambiguous, and arbitrary” to the Restricted Mode Guidelines. (Id. at ¶¶ 78, 80.) Prager claims that, similar to their “mistakes” in applying “Restricted Mode,” defendants once “denied a reach boost or ad product” on the ground of “shocking content” based on a user’s sexual or gender orientation and viewpoint. (Id. at ¶ 81.) It alleges that the application of such an “inappropriate” or “shocking content” designation falsely and unfairly stigmatizes Prager as well. (Id. at ¶ 82.) (However, while Prager alleges that certain of its videos have been demonetized, it does not allege whether defendants gave specific reasons for these actions or what those reasons were.) (See id. at ¶ 84.) D. The Parties’ Dispute In July of 2016, Prager discovered that defendants were restricting user access to its videos through Restricted Mode. (FAC, ¶ 101.) It raised the issue with defendants, but they have failed to offer any reasonable or consistent explanation for why Prager’s videos are being restricted. (Id. at ¶¶ 101-117.) In 2016, at least 16 Prager videos were restricted; by 2017, a Add. 31 3 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 59 of 71 total of 21 were. (Ibid.) By the time the FAC was filed in May of 2019, the total had risen to 80. (Id. at ¶ 127.) Prager’s videos were either “restricted as to content, demonetized, or both.” (Id. at ¶ 116.) Defendants also discontinued Prager’s “ad grants” account for more than six days in October of 2017. (Id. at ¶ 118.) On pages 9-17 of the FAC, Prager provides a chart listing its restricted videos by title, along with videos from defendants’ “preferred content providers” with similar titles that are unrestricted. (Id. at ¶ 23.) On October 23, 2017, Prager sued defendants in federal court, asserting claims for (1) violation of Article I, section 2 of the California Constitution; (2) violation of the First Amendment of the United States Constitution; (3) violation of the California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code. § 51 et seq.; (4) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (5) breach of the implied covenant of good faith and fair dealing; (6) violation of the Lanham Act, 15 U.S.C. § 1125 et seq.; and (7) declaratory relief. (Prager University v. Google LLC (N.D. Cal., Mar. 26, 2018, No. 17-CV-06064-LHK) 2018 WL 1471939, at *2.) It filed a motion for a preliminary injunction in the federal action on December 29, 2017. (Id. at *3.) On March 26, 2018, the federal court granted defendants’ motion to dismiss Prager’s federal claims and denied Prager’s motion for a preliminary injunction, finding that Prager had failed to state a claim for violation of the First Amendment because it did not allege state action, and had also failed to state a claim under the Lanham Act. (Id. at *5-13.) Having dismissed all of Prager’s federal claims, the court declined to exercise supplemental jurisdiction over its state law claims, explaining: Here, the factors of economy, convenience, fairness, and comity support dismissal of Plaintiff’s remaining state law claims. This case is still at the pleading stage, and no discovery has taken place. Federal judicial resources are conserved by dismissing the state law theories of relief at this stage. Further, the Court finds that dismissal promotes comity as it enables California courts to interpret questions of state law. This is an especially important consideration in the instant case because Plaintiff asserts a claim that demands an analysis of the reach of Article I, section 2 of the California Constitution in the age of social media and the Internet. (Prager University v. Google LLC, supra, 2018 WL 1471939, at *13.) Prager has appealed the federal court’s ruling to the Court of Appeal for the Ninth Circuit, which heard argument in the matter on August 27, 2019. Prager filed this action on January 8, 2019, reasserting its state law claims for (1) violation of Article I, section 2 of the California Constitution; (2) violation of the Unruh Act; (3) violation of the UCL; and (4) breach of the implied covenant of good faith and fair dealing. On May 13, the Court entered a stipulated order establishing a briefing schedule for Prager’s anticipated motion for a preliminary injunction and defendants’ anticipated demurrer and/or special motion to strike. On May 20, pursuant to that order, Prager moved for a preliminary injunction and filed the FAC, which asserts the same four causes of action as its original complaint. Defendants filed their demurrer on June 28. Both matters are now fully briefed and have come on for hearing by the Court. II. Demurrer to the FAC Add. 32 4 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 60 of 71 Defendants demur to each cause of action in the FAC for failure to state a claim. (Code Civ. Proc., § 430.10, subd. (e).) They contend that Prager’s claims are barred by two provisions of section 230 of the Communications Decency Act (the “CDA”) and by the First Amendment, and otherwise fail to state a cause of action. Defendants’ request for judicial notice, which is unopposed, is GRANTED as to public web pages displaying the terms of the various YouTube policies at issue in this action (Exhibits 1-9). (Evid. Code § 452, subd. (h); see Pacific Employers Ins. Co. v. State of Cal. (1970) 3 Cal.3d 573, 575, fn.1 [where portions of agreement were attached to plaintiff’s complaint, the balance of that agreement was properly a subject of judicial notice]; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285 [judicial notice of letter and media release was proper where, although they were not attached to the complaint, they formed a basis for the claims, and the complaint excerpted quotes and summarized parts in detail, thus “it is essential that we evaluate the complaint by reference to these documents”].) Defendants’ request is also GRANTED as to a transcript of a case management conference held in the federal action, although the Court is not bound by the court’s comments or rulings in that case. (Evid. Code § 452, subd. (d).) A. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. … Thus, … the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) A demurrer will lie where the allegations and matters subject to judicial notice clearly disclose some defense or bar to recovery, including a statutory immunity. (Casterson v. Superior Court (Cardoso) (2002) 101 Cal.App.4th 177, 183.) B. Violation of the California Constitution Because concepts related to the parties’ speech rights under the First Amendment and California Constitution are important to other aspects of its analysis, the Court will first examine whether Prager states a claim for violation of Article I, section 2 of the California Constitution. Add. 33 5 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 61 of 71 As urged by defendants, “California’s free speech clause”—like the First Amendment—“contains a state action limitation.” (Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1023.) However, the California Constitution’s protection of speech has been interpreted more broadly in this regard. (See Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 862-863.) Most notably, in the “groundbreaking” decision of Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, the Supreme Court of California “departed from the First Amendment jurisprudence of the United States Supreme Court and extended the reach of the free speech clause of the California Constitution to privately owned shopping centers.” (Golden Gateway Center v. Golden Gateway Tenants Assn., supra, 26 Cal.4th at p. 1016.) More than 20 years after Robins v. Pruneyard, Golden Gateway Center confirmed and began to define the scope of the state action limitation under the California Constitution, finding the requirement was not satisfied where a tenants’ association sought to distribute leaflets in a private apartment complex that was “not freely open to the public.” (Golden Gateway Center v. Golden Gateway Tenants Assn., supra, 26 Cal.4th at p. 1031.) Golden Gateway Center looked to the reasoning of Robins for guidance, noting that “Robins relied heavily on the functional equivalence of the shopping center to a traditional public forum-the downtown or central business district,” and relied on “the public character of the property,” emphasizing “the public’s unrestricted access.” (Id. at pp. 1032-1033, internal citations and quotations omitted.) Golden Gateway Center held that this unrestricted access is a “threshold requirement for establishing state action”: without it, private property “is not the functional equivalent of a traditional public forum.” (Id. at p. 1033.) In announcing this requirement, the opinion confirmed that it “largely follow[ed] the Court of Appeal decisions construing Robins,” including Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662. (Id. at p. 1033.) Those decisions also emphasized Robins’s focus on “the unique character of the modern shopping center and … the public role such centers have assumed in contemporary society” by effectively replacing “the traditional town center business block, where historically the public’s First Amendment activity was exercised and its right to do so scrupulously guarded.” (Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at pp. 1669-1670.) This concept was again emphasized by the California Supreme Court in Fashion Valley, which repeatedly referenced “[t]he idea that private property can constitute a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks ….” (Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, 42 Cal.4th at p. 858; see also id. at p. 859.) With this fundamental principle in mind, it is apparent that Prager does not state a claim under the California Constitution. Prager contends that “YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest” and that defendants have opened their platform to the public by advertising its use for this purpose. However, Prager does not allege that it has been denied access to the core YouTube service. Rather, it urges that its access to “Restricted Mode” and YouTube’s advertising service has been restricted. Prager does not persuade the Court that these services are freely open to the public or are the functional equivalent of a traditional public forum like a town square or a central business district.1 Considering “the nature, purpose, and primary use of the property; the 1 Prager cites no authority that supports its position that a court can never determine the applicability of Robins on demurrer, and this position is incorrect. (See Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1577, Add. 34 6 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 62 of 71 extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property’s occupants” (Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th at p. 119), it is clear that these services are nothing like a traditional public forum. “Restricted Mode” is an optional service that enables users to limit the content that they (or their children, patrons, or employees) view in order to avoid mature content. Limiting content is the very purpose of this service, and defendants do not give content creators unrestricted access to it or suggest that they will do so. The service exists to permit users to avoid the more open experience of the core YouTube service. Similarly, the use of YouTube’s advertising service is restricted to meet the preferences of advertisers. (See FAC, ¶ 80 [stated purpose of advertising restrictions “is to keep Google’s content and search networks safe and clean for our advertisers …”]; Declaration of Brian M. Willen, Exs. 7-9.) Defendants correctly urge that even to recognize the core YouTube platform as a public forum would be a dramatic expansion of Robins. As one federal court observed, “[t]he analogy between a shopping mall and the Internet is imperfect, and there are a host of potential ‘slippery slope’ problems that are likely to surface were [Robins] to apply to the Internet.” (hiQ Labs, Inc. v. LinkedIn Corporation (N.D. Cal. 2017) 273 F.Supp.3d 1099, 1116 [observing that “[n]o court has expressly extended [Robins] to the Internet generally”], aff’d and remanded (9th Cir. 2019) 938 F.3d 985.) However the courts of this state ultimately view that analogy with regard to a dominant, widely-used site like the core YouTube service, the analogy falls apart completely on the facts alleged here. “Restricted Mode” and YouTube’s advertising service are new, inherently selective platforms that do not resemble a traditional public forum. As discussed below, even more than the core YouTube service, these platforms necessarily reflect the exercise of editorial discretion rather than serving as an open “town square.” Finally, Prager contends that cases that have deemed web sites to be “public forums” for purposes of California’s “anti-SLAPP” statute require this Court to extend Robins to its claim. However, the anti-SLAPP statute encompasses speech “in a place open to the public or a public forum in connection with an issue of public interest” (Code Civ. Proc., § 425.16, subd. (e)(3), emphasis added), and has been applied to locations that clearly do not meet the standard described in Golden Gateway Center. (See, e.g., Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807 [anti-SLAPP statute applied to comments made during on-air discussion on talk radio].) “[T]he protections afforded by the anti-SLAPP statute are not coextensive with the categories of conduct or speech protected by the First Amendment or its California counterparts (Cal. Const., art. I, §§ 2–4).” (Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1152.) “As our high court recently reaffirmed, ‘courts determining whether conduct is protected under the anti-SLAPP statute look not to First Amendment law, but to the statutory definitions in section 425.16, subdivision (e).’ ” (Ibid., quoting City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) Defendants’ demurrer to the first cause of action will accordingly be sustained without leave to amend. In addition to failing to state a claim under Robins v. Pruneyard, this cause of action is barred by section 230 of the CDA for the reasons discussed below. (See In re Garcia (2014) 58 Cal.4th 440, 452 [supremacy clause of the federal Constitution requires that any conflicting state law give way to federal statute], citing U.S. Const., art. VI, cl. 2 [“This fn. 4 [stating that scope of Robins can be addressed on demurrer in appropriate circumstances].) Here, the necessary facts are alleged in the FAC and/or subject to judicial notice. Add. 35 7 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 63 of 71 Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding”].) B. CDA Immunity Section 230(c)(1) of the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” “§ 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” (Hassell v. Bird (2018) 5 Cal.5th 522, 536, quoting Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330.) “The CDA—of which section 230 is a part—was enacted in 1996.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 802.) “Its ‘primary goal ... was to control the exposure of minors to indecent material’ over the Internet.” (Ibid., quoting Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1026, superseded by statute on another point as stated in Breazeale v. Victim Services, Inc. (9th Cir. 2017) 878 F.3d 759, 766.) “Thus, an ‘important purpose of [the CDA] was to encourage [Internet] service providers to self-regulate the dissemination of offensive materials over their services.’ ” (Ibid., quoting Zeran v. America Online, Inc., supra, 129 F.3d at p. 331.) Section 230(c)(2) consequently immunizes service providers2 who endeavor to restrict access to material deemed objectionable, providing that [n]o provider or user of an interactive computer service shall be held liable on account of-(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).3 (47 U.S.C. § 230(c)(2).) A second, but related, objective of the CDA “was to avoid the chilling effect upon Internet free speech that would be occasioned by the imposition of tort liability upon companies that do not create potentially harmful messages but are simply intermediaries for their delivery.” (Delfino v. Agilent Technologies, Inc., supra, 145 Cal.App.4th at pp. 802-803.) 2 There is no dispute that defendants are providers of “an interactive computer service” under section 230. 3 It is widely agreed that section 230(c)(2)(B)’s reference to “paragraph (1)” is an error, and the provision should be interpreted to refer to section 230(c)(2)(A) or “paragraph (A).” (See, e.g., Enigma Software Group USA, LLC v. Malwarebytes, Inc. (9th Cir. 2019) 938 F.3d 1026, 1031, fn. 1.) Add. 36 8 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 64 of 71 The legislative history reflects that Congress was responding to a New York trial court case where “a service provider was held liable for defamatory comments posted on one of its bulletin boards, based on a finding that the provider had adopted the role of ‘publisher’ by actively screening and editing postings.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 44.) “ ‘Fearing that the specter of liability would ... deter service providers from blocking and screening offensive material,’ ” Congress forbid “ ‘the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.’ ” (Id., quoting Zeran v. America Online, Inc., supra, 129 F.3d at p. 331.) Thus, section 230(c)(1) “ ‘confer[s] broad immunity on Internet intermediaries’ ” in “ ‘a strong demonstration of legislative commitment to the value of maintaining a free market for online expression.’ ” (Hassell v. Bird, supra, 5 Cal.5th at p. 539, quoting Barrett v. Rosenthal, supra, 40 Cal.4th at p. 56.) Of the two provisions, section 230(c)(1) has been applied more frequently and broadly, including by courts in the Northern District of California to conduct indistinguishable from that alleged in this action. Notably, in Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc. (N.D. Cal. 2015) 144 F.Supp.3d 1088, 1090, aff’d sub nom. Sikhs for Justice, Inc. v. Facebook, Inc. (9th Cir. 2017) 697 Fed.App’x. 526, a human rights organization alleged that Facebook blocked access to its page in India “on its own or on the behest of the Government of India,” because of discrimination on the grounds of race, religion, ancestry, and national origin. Quoting Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 and Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (9th Cir. 2008) 521 F.3d 1157, the court reasoned that [p]ublication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content. Thus, a publisher decides whether to publish material submitted for publication. It is immaterial whether this decision comes in the form of deciding what to publish in the first place or what to remove among the published material. In other words, any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230. (Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., supra, 144 F.Supp.3d at p. 1094, emphasis added, internal citations and quotations omitted.) This approach has been endorsed by the Ninth Circuit. (See Riggs v. MySpace, Inc. (9th Cir. 2011) 444 Fed.App’x. 986, 987 [district court properly dismissed claims “arising from MySpace’s decisions to delete Riggs’s user profiles on its social networking website yet not delete other profiles Riggs alleged were created by celebrity imposters,” citing Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, supra, 521 F.3d at pp. 1170-1171 for the proposition that “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230”].) California opinions have similarly reasoned that the “type of activity” at issue here—“to restrict or make available certain material”—“is expressly covered by section 230.” (Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 572573 [describing “the general consensus to interpret section 230 immunity broadly, extending from Zeran …”]; see also Hassell v. Bird, supra, 5 Cal.5th at p. 537 [California “courts have followed Zeran in adopting a broad view of section 230’s immunity provisions”].) This interpretation was recently applied again by the Northern District in Federal Agency of News LLC v. Facebook, Inc. (N.D. Cal., July 20, 2019, No. 18-CV-07041-LHK) --- F.Sup.3d ---, 2019 WL 3254208, where it was held that section 230(c)(1) immunized Facebook from claims Add. 37 9 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 65 of 71 arising from its removal of a Russian company’s account and page due to its alleged control by an entity found to have interfered in the 2016 United States presidential election.4 Consistent with the language of section 230(c)(1), these cases do not question the service provider’s motive in deciding to remove content from its service. While Prager contends that section 230(c)(1) immunity should not be applied where a plaintiff alleges a service provider acted in bad faith or to stifle competition, it cites no persuasive authority adopting this interpretation.5 Courts have expressed greater concern with the issue of motive when interpreting section 230(c)(2), perhaps because paragraph (A) of that provision expressly includes a “good faith” requirement. Here, defendants rely on paragraph (B) of that provision, which they urge—like section 230(c)(1)—does not require good faith. In Zango, Inc. v. Kaspersky Lab, Inc. (9th Cir. 2009) 568 F.3d 1169, 1176-1177, the Ninth Circuit applied section 230(c)(2)(B) to a provider of Internet security software that deemed the plaintiff’s software to be “malware,” noting that the plaintiff had waived the issue of “whether subparagraph (B), which has no good faith language, should be construed implicitly to have a good faith component like 4 See also Langdon v. Google, Inc. (D. Del. 2007) 474 F.Supp.2d 622, 630-631 (applying immunity under section 230(c)(1) and/or (2) where plaintiff alleged defendants refused to display ads on his web pages criticizing the North Carolina and Chinese governments based on political viewpoint discrimination); Levitt v. Yelp! Inc. (N.D. Cal., Oct. 26, 2011, No. C-10-1321 EMC) 2011 WL 5079526, at *7-9, aff’d (9th Cir. 2014) 765 F.3d 1123 (section 230(c)(1) immunity applied to allegations that Yelp manipulated plaintiffs’ user reviews in order to induce them to pay for advertising); Lancaster v. Alphabet Inc. (N.D. Cal., July 8, 2016, No. 15-CV-05299-HSG) 2016 WL 3648608, at *2-3 (“§ 230[(c)(1) of the CDA prohibits any claim arising from Defendants’ removal of Plaintiffs’ videos”); Green v. YouTube, LLC (D.N.H., Mar. 13, 2019, No. 18-CV-203-PB) 2019 WL 1428890, at *6, report and recommendation adopted sub nom. Green v. YouTube, Inc. (D.N.H., Mar. 29, 2019, No. 18-CV203-PB) 2019 WL 1428311 (applying immunity under section 230(c)(1) where plaintiff alleged his accounts were improperly shut down); Brittain v. Twitter, Inc. (N.D. Cal., June 10, 2019, No. 19-CV-00114-YGR) 2019 WL 2423375, at *3 (section 230(c)(1) immunity applied where plaintiff alleged improper suspension of his Twitter accounts and that Twitter “limit[ed] users who reference new/competing networks and/or utilize Third Party API services”); King v. Facebook, Inc. (N.D. Cal., Sept. 5, 2019, No. 19-CV-01987-WHO) 2019 WL 4221768 (section 230(c)(1) immunity applied to theory that “Facebook has violated its (Terms of Service] in removing [plaintiff’s] posts and suspending his account, and that Facebook treats black activists and their posts differently than it does other groups, particularly white supremacists and certain ‘hate groups’ ”). 5 To the extent e-ventures Worldwide, LLC v. Google, Inc. (M.D. Fla. 2016) 188 F.Supp.3d 1265 adopts Prager’s view, it does so by conflating section 230(c)(1) and section 230(c)(2) with no analysis. The Court does not find this persuasive. While a subsequent, unpublished opinion in that action, e-ventures Worldwide, LLC v. Google, Inc. (M.D. Fla., Feb. 8, 2017, No. 214CV646FTMPAMCM) 2017 WL 2210029, *3-4 reasoned that applying section 230(c)(1) to service providers’ editorial decisions regarding a plaintiff’s own content would swallow “the more specific immunity in (c)(2)” with its good faith requirement, the opinion went on to grant summary judgment based on the First Amendment’s protection of editorial judgments, “no matter the motive.” This case does not persuade the Court to part ways with the courts that apply section 230(c)(1) to the same end based on the same reasoning. Similarly, Levitt v. Yelp! Inc. (N.D. Cal., Mar. 22, 2011, No. C 10-1321 MHP) 2011 WL 13153230, at *9 deemed it “a[] close[] question … whether Yelp may be held liable for its removal of positive reviews for the alleged purpose of coercing businesses to purchase advertising,” considering that this theory implicated bad faith. The court ultimately did not resolve the issue as it found the complaint otherwise failed to state a cause of action. A subsequent opinion in that case, Levitt v. Yelp! Inc. (N.D. Cal., Oct. 26, 2011, No. C-10-1321 EMC) 2011 WL 5079526, *9 held that section 230(c)(1) does not include a good faith requirement, and applied “even assuming Plaintiffs have adequately pled allegations stating a claim of an extortionate threat with respect to Yelp’s alleged manipulation of user reviews.” The Court finds the reasoning of the subsequent opinion more persuasive. Add. 38 10 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 66 of 71 subparagraph (A).” The concurring opinion expressed concern with extending immunity beyond the facts present in that case: Congress plainly intended to give computer users the tools to filter the Internet’s deluge of material users would find objectionable, in part by immunizing the providers of blocking software from liability. See § 230(b)(3). But under the generous coverage of § 230(c)(2)(B)’s immunity language, a blocking software provider might abuse that immunity to block content for anticompetitive purposes or merely at its malicious whim, under the cover of considering such material “otherwise objectionable.” (Zango, Inc. v. Kaspersky Lab, Inc., supra, 568 F.3d at p. 1178 (conc. opn. of Fisher, J.).) Noting that “[d]istrict courts nationwide have grappled with the issues discussed in Zango’s majority and concurring opinions, and have reached differing results,” the Ninth Circuit recently held that a service provider’s intent may be relevant under section 230(c)(2)(B): specifically, where a plaintiff alleges blocking by a direct competitor for anticompetitive purposes, its claims survive dismissal. (Enigma Software Group USA, LLC v. Malwarebytes, Inc. (9th Cir. 2019) 938 F.3d 1026.) Here, defendants’ creation of a “Restricted Mode” to allow sensitive users to voluntarily choose a more limited experience of the YouTube service is exactly the type of self-regulation that Congress sought to encourage in enacting section 230, and fits within section 230(c)(2)(B)’s immunity for “any action taken to enable or make available to … others,” namely, YouTube users, “the technical means to restrict access to” material “that the provider or user considers to be obscene, … excessively violent, … or otherwise objectionable.” Rather than unilaterally restricting access to material on its core platform as contemplated by section 230(c)(2)(A)—which contains a “good faith” requirement— defendants allow users to voluntarily restrict access to material that defendants deem objectionable for the stated reason that, like the categories of material enumerated by the statute, it may be inappropriate for young or sensitive viewers.6 The Court views this as a critical difference between the two provisions and disagrees with the majority in Enigma,7 who ignore the plain language of the statute by reading a good faith limitation into section 230(c)(2)(B). (See Enigma Software Group USA, LLC v. Malwarebytes, Inc., supra, 938 F.3d at p. 1040 (dis. opn. of Rawlinson, J.) [“The majority’s policy arguments are in conflict with our recognition in Zango that the broad language of the Act is consistent with ‘the Congressional goals for immunity’ as expressed in the language of the statute. [Citation.] As the district court cogently noted, we ‘must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ”].) 6 Consistent with these circumstances, a page discussing options for administrators employing “Restricted Mode,” which was submitted by Prager in connection with its motion for preliminary injunction, indicates that “[a]dministrators and designated approvers can now whitelist entire channels,” in addition to individual videos, to ensure a channel is “watchable by your users.” (Declaration of Peter Obstler, Ex. L.) Thus, it appears that users can specifically override defendants’ decisions to disable certain videos or channels in “Restricted Mode,” confirming that “Restricted Mode” is a tool made available to users rather than a unilateral ban. 7 See People v. Williams (1997) 16 Cal.4th 153, 190 (“Decisions of lower federal courts interpreting federal law are not binding on state courts.”); Elliott v. Albright (1989) 209 Cal.App.3d 1028, 1034 (although at times entitled to great weight, the decisions of the lower federal courts on federal questions are merely persuasive). Add. 39 11 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 67 of 71 Finding CDA immunity here is also consistent with cases that apply it in indistinguishable circumstances based on section 230(c)(1), and with their reasoning, which recognizes that challenges to a service provider’s editorial discretion “treat[]” the provider “as a publisher.” (See Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., supra, 144 F.Supp.3d 1088 [applying section 230(c)(1) to claim under Title II of the Civil Rights Act of 1964]; Federal Agency of News LLC v. Facebook, Inc., supra, 2019 WL 3254208 [applying section 230(c)(1) to claims under Title II of the Civil Rights Act of 1964, the Unruh Act, and for breach of the implied covenant of good faith and fair dealing].) The Court finds that immunity under section 230(c)(1) also applies here, to the allegations involving both “Restricted Mode” and defendants’ advertising service. While the Court understands Prager’s argument that all three provisions of section 230 should have a good faith requirement, this argument is contrary to the plain language of the statute. (See Hassell v. Bird, supra, 5 Cal.5th at p. 540 [noting that Barrett v. Rosenthal, supra, 40 Cal.4th 33 voiced “qualms” that Zeran’s interpretation of section 230 provides blanket immunity for those who intentionally redistribute defamatory statements, but held “these concerns were of no legal consequence” where principles of statutory interpretation compelled a broad construction].) And while it is not this Court’s role to judge the wisdom of the policy embodied by section 230, there are good reasons to support it. As the court in Levitt v. Yelp! Inc. (N.D. Cal., Oct. 26, 2011, No. C-10-1321 EMC) 2011 WL 5079526 reasoned, traditional editorial functions often include subjective judgments informed by political and financial considerations. [Citation.] Determining what motives are permissible and what are not could prove problematic. Indeed, from a policy perspective, permitting litigation and scrutin[izing] motive could result in the “death by ten thousand duck-bites” against which the Ninth Circuit cautioned in interpreting § 230(c)(1). [(Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, supra, 521 F.3d at p. 1174.)] One of Congres[s]’s purposes in enacting § 230(c) was to avoid the chilling effect of imposing liability on providers by both safeguarding the “diversity of political discourse ... and myriad avenues for intellectual activity” on the one hand, and “remov[ing] disincentives for the development and utilization of blocking and filtering technologies” on the other hand. §§ 230(a), (b); see also S.Rep. No. 104–230, at 86 (1996) (Conf.Rep.), available at 1996 WL 54191, at *[194] (describing purpose of section 230 to protect providers from liability “for actions to restrict or to enable restrict[ion] of access to objectionable online material”). For that reason, “[C]lose cases ... must be resolved in favor of immunity, lest we cut the heart out of section 230 ....” [(Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, supra, 521 F.3d at p. 1174.)] As illustrated by the case at bar, finding a bad faith exception to immunity under § 230(c)(1) could force Yelp to defend its editorial decisions in the future on a case by case basis and reveal how it decides what to publish and what not to publish. Such exposure could lead Yelp to resist filtering out false/unreliable reviews (as someone could claim an improper motive for its decision), or to immediately remove all negative reviews about which businesses complained (as failure to do so could expose Yelp to a business’s claim that Yelp was Add. 40 12 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 68 of 71 strong-arming the business for advertising money). The Ninth Circuit has made it clear that the need to defend against a proliferation of lawsuits, regardless of whether the provider ultimately prevails, undermines the purpose of section 230. (Levitt v. Yelp! Inc., supra, 2011 WL 5079526, at *8-9.) In the Court’s view, these concerns are particularly salient here, where the challenged services are by definition more curated than defendants’ core service and could not exist without more robust screening by defendants. In opposition to defendants’ demurrer, Prager cites a number of cases that affirm the principle applied in Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, supra, 521 F.3d 1157, which held that a service provider is not entitled to CDA immunity with regard to content it develops itself. However, this principle is inapposite here. Prager does not allege that defendants developed any of Prager’s content or appended any commentary to it— to the contrary, they allege the content became completely invisible in “Restricted Mode” or was simply demonetized. Applying CDA immunity under these circumstances does not conflict with Roommates. (See Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, supra, 521 F.3d at p. 1163 [in enacting CDA immunity, “Congress sought to immunize the removal of user-generated content, not the creation of content”].)8 Finally, Prager contends that applying CDA immunity here would constitute an unlawful prior restraint on its speech in violation of the First Amendment. However, a federal court has already held that defendants’ conduct does not violate the First Amendment, and this Court agrees with that analysis for the reasons discussed in connection with its analysis of Prager’s claim under the California Constitution. Moreover, Prager does not allege that defendants prevented it from engaging in speech, even on their own platform—again, it contends that certain videos were excluded from “Restricted Mode” and/or were demonetized. The Court consequently finds that section 230(c)(2)(B) bars Prager’s claims related to “Restricted Mode” and section 230(c)(1) bars all of its claims, with the possible exception of those based on its own promises and representations, which are discussed below.9 C. Breach of the Implied Covenant of Good Faith and Fair Dealing and Fraud Under the UCL Finally, Prager correctly urges that some California authority holds section 230(c)(1) of the CDA does not apply to claims based on a defendant’s own promises and representations to a plaintiff, rather than its role as a publisher. (See Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 313 [this immunity does not apply where “plaintiff seeks to hold Yelp liable for its own statements regarding the accuracy of its filter”]; but see Hassell v. Bird, supra, 5 Cal.5th at p. 542 [disapproving of “creative pleading” in an attempt to avoid section 230 immunity].) This authority does not apply to the Court’s finding of immunity under section 230(c)(2)(B). In any event, Prager’s claims asserting this type of theory—namely, its claim for 8 Although it does not bring a claim for defamation, Prager appears to suggest that defendants have defamed it by removing its content from “Restricted Mode” or demonetizing it. Such a claim would likely be foreclosed by the ruling in Bartholomew v. YouTube, LLC. (2017) 17 Cal.App.5th 1217, 1234. 9 The Court thus does not address defendants’ argument that Prager’s claims are barred by the First Amendment. Add. 41 13 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 69 of 71 breach of the implied covenant of good faith and fair dealing and its claim under the fraud prong of the UCL—do not state a cause of action. Prager does not and cannot state a claim for breach of the implied covenant of good faith and fair dealing in light of the express provisions of YouTube’s Terms of Service, which provide that “YouTube reserves the right to remove Content without prior notice” and which also allow YouTube to “discontinue any aspect of the Service at any time.” (See Declaration of Brian Willen, Ex. 1; Song fi Inc. v. Google, Inc. (N.D. Cal. 2015) 108 F.Supp.3d 876, 885 [plaintiff could not state a claim for violation of the covenant of good faith and fair dealing based on content removal in light of YouTube’s Terms of Service].) Similarly, YouTube’s AdSense Terms of Service reserve the right “to refuse or limit your access to the Services.” (Declaration of Brian Willen, Ex. 8; see Sweet v. Google Inc. (N.D. Cal., Mar. 7, 2018, No. 17CV-03953-EMC) 2018 WL 1184777, at *9-10 [plaintiff could not state a claim for violation of the covenant of good faith and fair dealing based on demonitization in light of similar reservation of rights in YouTube’s Partner Program Terms].) “[C]ourts are not at liberty to imply a covenant directly at odds with a contract’s express grant of discretionary power except in those relatively rare instances when reading the provision literally would, contrary to the parties’ clear intention, result in an unenforceable, illusory agreement.” (Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798, 808.) That is not the case here, and Prager does not contend that it is. (See Sweet v. Google Inc., supra, 2018 WL 1184777, at *9-10 [applying Third Story].) As to the UCL fraud claim, to the extent it is based on the “four essential freedoms” set forth above and similar statements, these statements are non-actionable puffery. (See Demetriades v. Yelp, Inc., supra, 228 Cal.App.4th at p. 311 [“ ‘a statement that is quantifiable, that makes a claim as to the “specific or absolute characteristics of a product,” may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery,’ ” quoting Newcal Industries, Inc. v. Ikon Office Solution (9th Cir.2008) 513 F.3d 1038, 1053]; Prager University v. Google LLC, supra, 2018 WL 1471939, at *11 [“None of the statements about YouTube’s viewpoint neutrality identified by Plaintiff resembles the kinds of ‘quantifiable’ statements about the ‘specific or absolute characteristics of a product’ that are actionable under the Lanham Act.”].) Prager also alleges that defendants represented that “the ‘same standards apply equally to all’ when it comes to the content regulation on YouTube.” (FAC, ¶ 85; see also id. at ¶ 13.) While this statement is arguably more than mere puffing (see Demetriades v. Yelp, Inc., supra, 228 Cal.App.4th at p. 311-312), Prager does not allege that it suffered a loss of money or property as a result of its reliance on this statement. “There are innumerable ways in which economic injury from unfair competition may be shown,” including where a plaintiff “ha[s] a present or future property interest diminished.” (Kwikset Corp. v. Superior Court (Benson) (2011) 51 Cal.4th 310, 323; see also Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29, 38 [UCL “unlawful” plaintiffs established standing by alleging diminished credit score caused by defendant’s false negative reporting to credit agencies, even where they never made payments on the loan at issue].) The “lost income, reduced viewership, and damage to brand, reputation, and goodwill” that Prager alleges (FAC, ¶ 157) would certainly satisfy this requirement if there were a causal connection between Prager’s alleged reliance on defendants’ statement in participating in the YouTube service and these harms. However, these injuries cannot have resulted from Prager’s decision to use YouTube: they could only have been caused by YouTube’s later decisions to restrict and/or demonetize Prager’s content. Add. 42 14 Case: 17-17351, 10/28/2019, ID: 11480086, DktEntry: 56, Page 70 of 71 (See Prager University v. Google LLC, supra, 2018 WL 1471939, at *11-12 [“Plaintiff has not sufficiently alleged that it ‘has been or is likely to be injured as the result of the’ statements about YouTube’s viewpoint neutrality. [Citation.] As discussed above, any harm that Plaintiff suffered was caused by Defendants’ decisions to limit access to some of Plaintiff’s videos.”].) These later decisions by YouTube could not have been relied on by Prager. (See id. at *11 [“Although Plaintiff asserts that it has suffered injury in the form of ‘lower viewership, decreased ad revenue, a reduction in advertisers willing to purchase advertisements shown on Plaintiff’s videos, diverted viewership, and damage to its brand, reputation and goodwill,” … nothing in Plaintiff’s complaint suggests that this harm flowed directly from Defendants’ publication of their policies and guidelines. Instead, any harm that Plaintiff suffered was caused by Defendants’ decisions to limit access to some of Plaintiff’s videos ….”].) Moreover, recognizing this theory would appear to conflict with principles of defamation law as recently discussed in Bartholomew v. YouTube, LLC. (2017) 17 Cal.App.5th 1217. Prager thus fails to state a cause of action based on the implied covenant of good faith and fair dealing or the fraud prong of the UCL. D. Conclusion and Order For all these reasons, the demurrer to the first through fourth causes of action is SUSTAINED WITHOUT LEAVE TO AMEND. III. Motion for Preliminary Injunction As discussed above, Prager has not shown a reasonable probability of success on the merits in this action. Its motion for a preliminary injunction is consequently DENIED. (See San Francisco Newspaper Printing Co. v. Superior Court (Miller) (1985) 170 Cal.App.3d 438, 442.) The Court will prepare the order. - oo0oo - Add. 43 15