Can you sue YouTube for emotional distress? I interviewed Evan Brown, technology and Internet property attorney from Chicago, and asked him about the huge legal challenges with holding YouTube responsible for what other people post online, even if it causes serious emotional trauma to the “victims” featured in the videos themselves. 

Can I Sue YouTube For Emotional Distress?

I asked Attorney Evan Brown: Could someone actually be successful with suing YouTube for a video published on their site if it shows a potentially illegal or even criminal activity that they can prove in court that they’re they victim of, AND the posting of the video on YouTube was proven in court to cause them serious emotional trauma?

Here is Evan’s response, which is also available in the closed-captioning of my video interview with Evan above:

Important Note: The following is for general information purposes only, and not to be construed as, or substituted for, professional legal advice. For that we strongly recommend you consult with a local attorney!

Given the fact that YouTube accepts about 24 hours of video every minute, it’s hard to imagine that our legal system would put that kind of stress, and that kind of burden on YouTube, to be responsible for ALL of that content. That is a LOT of content that’s uploaded to YouTube; and that’s just a small fraction of the content that’s uploaded to the Internet as a whole.

I get this question a LOT. Say something BAD has happened online. Somebody said something BAD about someone, or somebody uploads a crazy video like what Evan Emory has done here. Can I go after the service provider for this? Can I sue Facebook for this photo, or this status update? Can I sue Yelp for this bad product review? Or, can I sue YouTube because someone inflicted emotional distress on someone through a video? And the quick answer is, “no.” You cannot sue the service provider for content that is uploaded by other people, because of this provision in federal law called “The Communications Decency Act.”

And, this was signed into law back in the mid 90’s, 1996. President Clinton signed this law, this bill into law. And what it says is that that no provider of an interactive computer service, like a website, or an Internet service provider, or a platform like YouTube, no provider of an interactive computer service can be treated as the publisher, or speaker of information that’s provided by 3rd parties. And if you stop and think about it, that makes good sense.

YouTube defend yourself. YouTube criminalAs I started off telling you about, you know, something like at least 24 hours of video is uploaded to YouTube every minute. So there is no way that one can reasonably expect a site like YouTube to review this content, let alone make a legal determination as to whether or not this is defamatory of someone, or whether or not this is going to inflict emotional distress on someone. It would take literally an army full of lawyers working 24/7 to do that.

So, Congress recognized that if there is going to be development of the Web, an investment in the infrastructure, we’ve got to let these service providers off the hook for all the crazy things that people can do through their services. So the simple answer is “no.” It would be pretty useless to go after YouTube in this situation and in most circumstances where the question involves content that is uploaded by someone else.

So even though the general rule is that you can’t sue YouTube for content that is uploaded by some else, there is at least an exception to that which at least one or two courts have recognized. That is, if the service provider is actually in communication with the party that wants the communication taken down, and it makes a promise that it will take that content down, and then it does not live up to that promise. And this is kind of a technical legal point. But what the courts have found is, where the person is suing for the breach of promise, you really aren’t treating YouTube as the publisher; you’re treating them as someone who broke a promise, and that’s different; and that’s not protected by the Communications Decency Act.

About Evan Brown, Attorney

Evan Brown is a technology and intellectual property attorney in Chicago, with his practice focusing heavily on Internet Law. Evan regular blogs about law and technology issues, and is a perennial guest on the This Week in Law show, which is available via audio podcast and video. You can follow Evan Brown on twitter @internetcases, and on Facebook.