Joyce Bartholomew v. Youtube, LLC

We are asked in this case to decide whether a musician stated a claim for libel per

quod against the popular video viewing Web site, YouTube. When YouTube decided to

block access to Joyce Bartholomew’s video, it posted a statement that the video had

violated YouTube’s terms of service, a statement which also provided a hyperlink to a list

of examples and tips, a list YouTube called its “Community Guideline Tips.” In her

complaint, Bartholomew alleged that both the statement notifying users that her video

had been taken down and the Community Guideline Tips subsection harmed her

reputation. The trial court sustained YouTube’s demurrer to the sole cause of action,

libel per quod, without leave to amend. Bartholomew appeals. For the reasons stated

below, we agree with the trial court that Bartholomew has not stated a claim and will

therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

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Joyce Bartholomew (Bartholomew) lives in Naples, Florida. She is a musician

who creates and publishes what she calls “original Christian ministry music.” Around

August 2011, Bartholomew became a volunteer national spokesperson and the “opening

act” for concerts involving an organization called, Mission: PreBorn. At some time not

indicated in her pleadings, Bartholomew wrote a song called “What Was Your Name,” a

“Christian and pro-life song” (the song). In 2013, she produced a video for the song,

which she claims was of “high quality and likely to be well received by her listeners and

viewers” (the video).

That same year, Bartholomew created an account with YouTube, LLC (YouTube)

and agreed to be bound by its terms of service. On January 14, 2014, Bartholomew

uploaded the video for the song to her YouTube account. YouTube assigned a uniform

resource locator (URL) for the video so that it could be viewed on the internet.

Bartholomew began sharing the URL with her listeners, viewers, and other members of

the public by “word of mouth and on social media websites.” By the end of April 2014,

she claims, the video had been viewed over 30,000 times.

At some point near the end of April 2014, however, YouTube “removed the

Video.”1

The URL for the Bartholomew’s original video was not itself deactivated—

instead, the URL opened an internet page with “the image of a distressed face and the

following written statement. . . . ‘This video has been removed because its content

violated YouTube’s Terms of Service.’ ” (For ease of reference, we will refer to this

sentence posted by YouTube as the “removal statement.”)



1

YouTube asserts that Bartholomew’s video was not removed entirely but was

simply moved from its original URL to a new location where its view count was reset.

This does not appear in Bartholomew’s pleading, but it is irrelevant for the purposes of

our analysis.

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The screen with the removal statement did not explain or provide any details as to

how or why the video violated YouTube’s terms of service. It also did not refer to

Bartholomew by name. The removal statement, however, did provide a hyperlink. That

link would lead readers to a new internet page entitled “Community Guideline Tips.”

That page reads: “Want a little more insight into the limits and exceptions in the

Community Guidelines? Here are some helpful examples and tips.” Then follows a list,

arranged in column format, of 10 categories: “Sex and Nudity,” “Hate Speech,”

Shocking and Disgusting,” Dangerous Illegal Acts,” “Children,” Copyright,” “Privacy,”

“Harassment,” “Impersonation,” and “Threats.”2

Each of these categories in turn has a

hyperlink which provides readers with “further elaboration” about each category.

(Because the content of these categories is germane to our analysis, they are set forth in

full in a footnote below.)3



2

The Community Guideline Tips are attached to Bartholomew’s first amended

complaint as an exhibit in what appears to be an image of what the viewer would see

displayed on a computer, a screenshot. Although the complaint does not say it, the

parties seem to agree that the Community Guideline Tips constitutes the lower portion of

a longer internet page called “YouTube Community Guidelines,” which are also

incorporated into YouTube’s terms of service.

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“Sex and Nudity: Most nudity is not allowed, particularly if it is in a sexual

context. Generally if a video is intended to be sexually provocative, it is less likely to be

acceptable for YouTube. There are exceptions for some educational, documentary,

scientific, and artistic content, but only if that is the sole purpose of the video and it is not

gratuitously graphic. For example, a documentary on breast cancer would be appropriate,

but posting clips out of context from the documentary might not be.

“Hate Speech: ‘Hate Speech’ refers to content that incites hatred against members

of a protected group. For instance, racist or sexist content may be considered hate

speech. Sometimes there is a fine line between what is and what is not considered hate

speech. For instance, it is generally okay to criticize a nation, but not okay to incite

hatred or violence against people of a particular nationality.

“Shocking and Disgusting: The world is a dangerous place. Sometimes people do

get hurt and it’s inevitable that these events may be documented on YouTube. However,

it’s not okay to post violent or gory content that’s primarily intended to be shocking,

sensational or disrespectful. If a video is particularly graphic or disturbing, it should be

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balanced with additional context and information. For instance, including a clip from a

slaughter house in a video on factory farming may be appropriate. However, stringing

together unrelated and gruesome clips of animals being slaughtered in a video may be

considered gratuitous if its purpose is to shock rather than illustrate.

“Dangerous Illegal Acts: While it might not seem fair to say you can’t show

something because of what viewers theoretically might do in response, we draw the line

at content that’s intended to incite violence or encourage dangerous, illegal activities that

have an inherent risk of serious physical harm or death. This means not posting videos

on things like instructional bomb making, ninja assassin training, sniper attacks, videos

that train terrorists, or tips on illegal street racing. Any depictions like these should be

educational or documentary and shouldn’t be designed to help or encourage others to

imitate them.

“Children: Videos involving children (anyone under the age of 18) are

particularly sensitive. Videos containing children should never be sexually suggestive or

violent. Please be cautious when posting something involving a child. If you’re sharing a

private moment or home movie, consider making it a private video so that only your

family and friends can see it.

“Copyright: When you create something original, you own the copyright for it.

Likewise, when other people create content, they may have a copyright to it. As a

creative community, it’s essential that everyone on YouTube respect the copyrights of

others. If you’re not sure if something will violate someone’s copyright, the safest thing

to do is to create something completely original, with images and audio you’ve created. If

it’s all yours you never have to worry about copyright—you own it. If you’ve recorded

something from a DVD, videotaped your TV screen, or downloaded a video online, don’t

post it unless you have permission.

“Privacy: If a video you’ve recorded features people who are readily identifiable

and who haven’t consented to being filmed, there’s a chance they’ll file a privacy

complaint seeking its removal. We’ll notify you if that happens and give you a chance to

edit and re-upload your video before we act on the complaint. If we do remove your

video for privacy reasons, don’t upload another version featuring the same people.

Chances are those people will file another privacy complaint or report you for

harassment. Don’t post other people’s personal information, including phone numbers,

addresses, credit card numbers, and government IDs. We’re serious about keeping our

users safe and suspend accounts that violate people’s privacy.

“Harassment: It comes down to respect. YouTube is all about sharing and

interacting with the community in respectful ways. If you’re not sure whether a video or

comment you’ve made crosses the line, follow a simple rule of thumb: if you wouldn't

say it to someone’s face, don't say it on YouTube. And if you’re looking to attack,

harass, demean, or impersonate others, go elsewhere.

Impersonation: Impersonating another user by copying someone’s exact channel

layout, using a similar username, or posing as that person in comments, emails or videos

5

Although the pleadings are not entirely explicit on this point, it seems that these

further details regarding each category apparently could be accessed by a viewer’s

clicking on each category on the Community Guideline Tips page—they may have also

been available already expanded on the full “YouTube Community Guidelines” page (the

pleadings are not clear on this subject).

Bartholomew’s counsel contacted YouTube by e-mail on June 18, 2014 and asked

that the video be restored to the site and that the notice of violation be removed. Two

days later, on June 20, YouTube responded that the removal was justified because

Bartholomew’s account had run afoul of Paragraph 4(H) of YouTube’s terms of service,

which bans the use of automated systems (such as “robots,” “spiders,” and “offline

readers”) which “send[] more request messages to the YouTube servers in a given period

of time [than] a human can reasonably produce in the same period by using a

conventional on-line Web browser.”

Bartholomew’s counsel then asked YouTube to provide evidence of such a

violation. YouTube responded by writing that “[a]ny information regarding our users is

subject to relevant laws protecting individual privacy. In accordance with these laws,

YouTube will only provide information pursuant to appropriate legal process.”

Bartholomew then filed a complaint against YouTube purporting to state one

cause of action, libel per se. She claimed that not only did she not violate the terms of

service, making the removal statement false, but that, even if it were true, this did not

concern the “content” of the video as the removal statement indicated. She also claimed

that YouTube published statements that were libel per se because they imputed to her a

“want of character,” a violation of the terms of service, and the creation and posting of



is considered harassment. If you want to keep your account, stay away from participating

in any form of impersonation or harassing activity on the site.

“Threats: Users shouldn’t feel threatened when they’re on YouTube. Period.

Don’t leave threatening comments on other people's videos.”

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videos which “concern sex and nudity, hate speech, shocking and disgusting acts,

dangerous illegal acts, inappropriate use of children, copyright infringement, privacy

violations, harassment, impersonation, and/or threats.”

In response to a demurrer by YouTube, the trial court found that Bartholomew had

alleged that the removal statement itself (the simple statement that the video has been

removed) was false but that it was not defamatory on its face (as required for libel per se)

because it did not mention her in any way and contained nothing that would subject

Bartholomew to hatred, contempt, or the like. The trial court also held that the

Community Guideline Tips page constituted “extrinsic facts and innuendo,” which were

necessary to understand any defamatory meaning. The court also held that assuming,

arguendo, that the Community Guideline Tips were not considered extrinsic explanatory

matter, they still did not defame Bartholomew because “a reasonable reader would not

infer . . . that the [v]ideo contained the specific kinds of improper content mentioned”

because the categories listed are described as “examples” to provide readers with further

insight. The court sustained the demurrer with leave to amend.

Bartholomew filed an amended complaint, this time stating a single cause of

action of libel per quod. Besides the addition of allegations relating to what

Bartholomew claims were special damages, the amended complaint was materially the

same as the initial pleading. Again, she alleged that YouTube had published public

writings that were libelous because they imputed a want of character, that she violated

YouTube’s terms of service, that she created and posted videos that violated the terms of

service in ways which “reflect[ed] adversely on [Bartholomew’s ] character because they

all refer to such” conduct as sex, nudity, etc.

YouTube once again filed a demurrer. This time, the trial court sustained it

without leave to amend. It found that the removal statement was not “libelous whether or

not it is interpreted in light of the ‘Community Guideline Tips.’ The [s]tatement refers to

7

a violation of YouTube’s Terms of Service, not its Community Guidelines, and the

‘Community Guideline Tips’ merely displays an exemplary list of issues, none of which

are suggested to relate to [Bartholomew.] Furthermore, while accusations of a violation

relating to some categories (e.g. ‘Sex and Nudity,’ ‘Hate Speech’) could be deemed

libelous in the context of [Bartholomew’s] career, other categories (e.g. ‘Children,’

‘Copyright,’ ‘Privacy,’) do not necessarily evoke offensive conduct. Given these

circumstances, the [s]tatement and ‘Community Guideline Tips’ simply do not impute

any offensive conduct to [Bartholomew]. [Bartholomew] relied upon this same material

in her original complaint, and does not contend that any new extrinsic material bearing on

the meaning of the [s]tatement could be included in a further amended complaint.” This

order was signed on August 5, 2015. A notice of appeal was filed on September 14,

2015.

DISCUSSION

Bartholomew’s main argument on appeal is that the trial court was incorrect in its

conclusion that the Community Guideline Tips were not defamatory because they

contained only examples of offensive conduct and that some of them do not even evoke

offensive conduct to begin with. She also argues that YouTube’s one-sentence removal

statement was defamatory even without regard to the Community Guideline Tips.

Because we reject both of these arguments, which are dispositive of her claim for libel

per quod, we need not address additional issues raised by Bartholomew, such as whether

she adequately alleged special damages.

I. Standard of Review

“In determining whether plaintiff has properly stated a claim for relief, our

standard of review is clear: ‘ “We treat the demurrer as admitting all material facts

properly pleaded, but not contentions, deductions or conclusions of fact or law.

[Citation.] We also consider matters which may be judicially noticed.” [Citation.]

8

Further, we give the complaint a reasonable interpretation, reading it as a whole and its

parts in their context. [Citation.] When a demurrer is sustained, we determine whether

the complaint states facts sufficient to constitute a cause of action. [Citation.] And when

it is sustained without leave to amend, we decide whether there is a reasonable possibility

that the defect can be cured by amendment: if it can be, the trial court has abused its

discretion and we reverse; if not, there has been no abuse of discretion and we affirm.

[Citations.] The burden of proving such reasonable possibility is squarely on the

plaintiff.’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [citations].” (Zelig v. County of

Los Angeles (2002) 27 Cal.4th 1112, 1126.)4



II. General Background Regarding The Law Of Libel

“Libel is a false and unprivileged publication by writing, printing, picture, effigy,

or other fixed representation to the eye, which exposes any person to hatred, contempt,

ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a

tendency to injure him in his occupation.” (Civ. Code, § 45.)5

There are generally two

types of libel recognized in California—libel per se and libel per quod. “A libel which is

defamatory of the plaintiff without the necessity of explanatory matter, such as an

inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory

language not libelous on its face is not actionable unless the plaintiff alleges and proves



4

The record contains no order of dismissal, only an order sustaining YouTube’s

demurrer to Bartholomew’s first amended complaint without leave to amend. In view of

our resolution of the issues as explained below, we shall order the trial court to enter,

nunc pro tunc as of August 5, 2015, the date of the order sustaining YouTube’s demurrer

without leave to amend, an order of dismissal (Code Civ. Proc., § 581d), and we construe

the notice of appeal to refer to that order. (See Ulta Salon, Cosmetics & Fragrance, Inc.

v. Travelers Property Casualty Co. of America (2011) 197 Cal.App.4th 424, 426.)

5

All statutory references herein are to the Civil Code unless otherwise stated.

9

that he has suffered special damage as a proximate result thereof.” (§ 45a.; see also

MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547-548 (MacLeod).)

6

The distinction has been described as follows: “If no reasonable reader would

perceive in a false and unprivileged publication a meaning which tended to injure the

subject’s reputation in any of the enumerated respects, then there is no libel at all. If such

a reader would perceive a defamatory meaning without extrinsic aid beyond his or her

own intelligence and common sense, then (under section 45a and the cases, such as

MacLeod, which have construed it) there is a libel per se. But if the reader would be able

to recognize a defamatory meaning only by virtue of his or her knowledge of specific

facts and circumstances, extrinsic to the publication, which are not matters of common

knowledge rationally attributable to all reasonable persons, then (under the same

authorities) the libel cannot be libel per se but will be libel per quod.” (Barnes-Hind, Inc.

v. Superior Court (1986) 181 Cal.App.3d 377, 386-387 (Barnes-Hind).)

“The purpose of the rule requiring proof of special damages when the defamatory

meaning does not appear on the face of the language used is to protect publishers who

make statements innocent in themselves that are defamatory only because of extrinsic

facts known to the reader.” (MacLeod, supra, 52 Cal.2d at p. 550.) “In the libel context,

‘inducement’ and ‘innuendo’ are terms of art: ‘[Where] the language is ambiguous and

an explanation is necessary to establish the defamatory meaning, the pleader must do two

things: (1) Allege his interpretation of the defamatory meaning of the language (the

“innuendo”); (2) support that interpretation by alleging facts showing that the readers or

hearers to whom it was published would understand it in that defamatory sense (the



6

“ ‘Special damages’ are all damages which plaintiff alleges and proves that he

has suffered in respect to his property, business, trade, profession, or occupation,

including such amounts as the plaintiff alleges and proves he has expended as a result of

the alleged libel, and no other.” (§ 48a, subd. (d)(2).)

10

“inducement”).’ [Citation.] ‘The office of an innuendo is to declare what the words

meant to those to whom they were published.’ (Washer v. Bank of America (1943) 21

Cal.2d 822, 828 [citations], italics added [limited by MacLeod in respect not relevant

here]; [citation].) ‘In order to plead . . . ambiguous language into an actionable libel . . . it

is incumbent upon the plaintiff also to plead an inducement, that is to say, circumstances

which would indicate that the words were understood in a defamatory sense showing that

the situation or opinion of the readers was such that they derived a defamatory meaning

from them. [Citation.]’ (Peabody v. Barham (1942) 52 Cal.App.2d 581, 585 [citation],

italics added [limited by MacLeod in respect not relevant here]; [citation].)” (BarnesHind,

supra, 181 Cal.App.3d at p. 387.)

“ ‘ “[I]n passing upon the sufficiency of such language as stating a cause of action,

a court is to place itself in the situation of the hearer or reader, and determine the sense or

meaning of the language of the complaint for libelous publication according to its natural

and popular construction.” That is to say, the publication is to be measured not so much

by its effect when subjected to the critical analysis of a mind trained in the law, but by the

natural and probable effect upon the mind of the average reader. A defendant is liable for

what is insinuated, as well as for what is stated explicitly. [Citation.]’ [Citation].”

(MacLeod, supra, 52 Cal.2d at p. 547.)

Further, “[t]he publication in question may not be divided into segments and each

portion treated as a separate unit; it must be read as a whole in order to understand its

import and the effect that it was calculated to have on the reader, and construed in the

light of the whole scope and apparent object of the writer, considering not only the actual

language used, but the sense and meaning that may be fairly presumed to have been

conveyed to those who read it. [Citation.] Headlines and captions of an allegedly

libelous article are regarded as a part of the article.” [Citation].) (Selleck v. Globe Int’l

(1985) 166 Cal. App. 3d 1123, 1131 (Selleck).)

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III. YouTube’s Community Guideline Tips Do Not Support A Claim Of Libel

Per Quod

Bartholomew’s main argument on appeal is that the Community Guideline Tips

internet page was defamatory and that the trial court’s reliance on the fact that it only

listed examples of conduct which might result in a video being removed and its reliance

on the fact that the page did not mention her by name were erroneous. We are not

persuaded.

As described above, Bartholomew alleges that, at the URL dedicated to her video,

YouTube placed the statement that “ ‘[t]his video has been removed because its content

violated YouTube’s Terms of Service.’ ” The hyperlink embedded in the statement leads

the viewer to the Community Guideline Tips page which reads: “Want a little more

insight into the limits and exceptions in the Community Guideline? Here are helpful

examples and tips.” Then follows the list summarized above, including “Sex and

Nudity,” “Hate Speech,” Shocking and Disgusting,” Dangerous Illegal Acts,” “Children,”

Copyright,” “Privacy,” “Harassment,” “Impersonation,” and “Threats.” Bartholomew

alleges that each of these words, standing alone, is defamatory, but that they are also

“particularly defamatory because of the manner in which YouTube defines those

categories of conduct for the public.” (See fn. 4, ante.)

Some of these statements, if they were sufficiently directed at Bartholomew, could

unquestionably constitute libel per se. “Perhaps the clearest example of libel per se is an

accusation of crime.” (Barnes-Hind, supra, 181 Cal.App.3d at p. 385.) But we believe

the central problem with Bartholomew’s analysis is her failure to allege how the

hyperlink would be viewed as defaming her personally.

Bartholomew argues that hyperlinks function as the modern equivalent of a

footnote and that, because the removal statement contained a hyperlink to the Community

Guideline Tip page, then the contents of that page were naturally attributed to her.

12

Quoting a federal case from the Southern District of New York, Bartholomew states that

“[h]yperlinks have long been understood to be critical to communication because they

facilitate access to information. They provide visitors on one Web site a way to navigate

internally referenced words, phrases, arguments, and ideas.” (Adelson v. Harris

(S.D.N.Y. 2013) 973 F.Supp.2d 467, 484; quoting Dalal, Protecting Hyperlinks and

Preserving First Amendment Value on the Internet (2011) 13 U.Pa. J. Const. L. 1017,

1019].)

This may be—but hyperlinks are used in so many different ways that it is

practically impossible to describe their impact in any general way and the effect of each

should be judged according to its own context.7

They can be used, for example, to refer

the viewer to more specific information about the subject being discussed on the

originating page. (See, e.g., Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 19 [unsatisfied

plastic surgery patient using hyperlinks to photographs of “Before and After Photos” of a

surgery].) But, as here, a hyperlink can also be used to provide access to a webpage with

information more general and less specific than was available on the originating page.

We believe an Internet user with a reasonable working knowledge of the how

internet hyperlinks work would have understood that the list on the Community

Guideline Tips page is in fact general—that no one particular offense could be reasonably

read to apply to Bartholomew’s video and that the categories applied to the many

thousands of videos that YouTube might have had to remove for any number of reasons.



7

For example, a link can be used to create an enforceable contract. (See, e.g.,

E.K.D. v. Facebook, Inc. (S.D. Ill. 2012) 885 F.Supp.2d 894, 901-902 [enforcing forum

selection clause contained in terms of service accessible by means of a conspicuous

hyperlink].) And a recent spate of cases have had to determine whether a hyperlink to an

allegedly defamatory article can constitute a republication of those articles for the

purposes of libel law. (See, e.g., Sundance Image Tech., Inc. v. Cone Editions Press, Ltd.

(S.D. Cal., Mar. 7, 2007) 2007 U.S. Dist. LEXIS 16356, *23 [applying California law

and finding that plaintiff had failed to come forward with significant, probative evidence

of such a republication within the limitations period applicable].)

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A contrary reading leads to two main problems for Bartholomew’s complaint: first,

Bartholomew does not adequately allege any particular defamatory meaning or false

statement of fact and second, she does not adequately allege that any defamatory

statement actually concerned her (i.e., that she was defamed).

Bartholomew asserts in her complaint, for example, that “all of the examples

given of an alleged violation of the Terms of Service reflect adversely on Plaintiff’s

character.” (Emphasis added.) But it is the very breadth of the contents of Community

Guideline Tips that make this reading implausible. Bartholomew does not argue in any

of her briefs, for example, that anyone would reasonably have believed that she had

posted a video “incit[ing] hatred or violence against people of a particular nationality” (as

described under “Hate Speech”) or that she had strung “together unrelated and gruesome

clips of animals being slaughtered” (under “Shocking and Disgusting”) or that someone

would have reasonably believed that she was posting “videos that train terrorists” or to

instruct viewers on “bomb making” (as described under “Dangerous Illegal Acts.”)

Bartholomew also ignores other sections of the Community Guidelines above the Tips

section (which she seems to concede can easily be accessed from the Community

Guideline Tips hyperlink by simply scrolling upward) such as posting “repetitive

content.”

All of this, we believe, is fatal to Bartholomew’s claim because she fails to

persuade us that the Community Guideline Tips page has “an essential element of libel”

which is “a false statement of fact” about the plaintiff. (Selleck, supra, 166 Cal.App.3d at

p. 1133 [italics added].). “[T]he determinative question [for a libel claim] is whether the

‘gist or sting’ of the statement is true or false, benign or defamatory, in substance.

[Citations.]” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal. App. 4th

1165, 1181-1182.) After reviewing her complaint and her arguments on appeal, we are

left wondering what “gist or sting” Bartholomew is even claiming wronged her.

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To shore up this weakness, Bartholomew resorts to a legal doctrine normally used

in statutory construction and contract interpretation, ejusdem generis. As her complaint

alleges, “[p]ursuant to the doctrine of ejusdem generis, any individual alleged violations

of the Terms of Service concerning content would be assumed by a reasonable person to

be of the same offensive nature. See Cal. Civ. Code § 3534.” As she argues, “[c]ommon

practice and legal doctrine both hold that when an illustrative list of violations is

provided, all other violations must be similar in kind to the examples listed. In law, this

is the doctrine of ejusdem generis.”

As we have discussed, applying a legal doctrine like this seems to be contrary to

the rule that the publication in question “ ‘is to be measured not so much by its effect

when subjected to the critical analysis of a mind trained in the law, but by the natural and

probable effect upon the mind of the average reader.’ [Citation.]” (MacLeod, supra, 52

Cal.2d at p. 551.) In any event, the Latin phrase ejusdem generis (meaning of the same

kind or of the same class) stands for the proposition that “ ‘ “where general words follow

the enumeration of particular classes of persons or things, the general words will be

construed as applicable only to persons or things of the same general nature or class as

those enumerated.” ’ ” (O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1461.)

Even if we were to apply the doctrine to this case (and Bartholomew has pointed

us to no libel case where it had been applied ), we see no unifying general nature or

principle that links all of the bad acts listed by YouTube on its Community Guideline

Tips page. This conduct ranges from posting a video which inadvertently includes

someone who does not want to be filmed, to racist or sexist hate speech, to videos

intended to incite violence, to inadvertently violating another person’s copyright. There

is here, then, no general class of conduct upon which ejusdem generis would or could be

based. (See, e.g., Ali v. Federal Bureau of Prisons (2008) 552 U.S. 214, 225 [rejecting

15

application of ejusdem generis where it was “not apparent what common attribute

connects the specific items”].)

Moreover, the use of ejusdem generis would raise a question as to how, if this case

were to proceed to a trial, a jury would conduct its task. Would Bartholomew ask the

jury to determine if YouTube defamed her under a common attribute uniting all of the

categories listed on the Community Guideline Tip page? What would that even mean,

given the disparate acts that are listed as potential violations of YouTube’s guidelines?

Bartholomew does not pose—and so does not answer—that crucial question.

For libel per quod, which Bartholomew herself emphasizes is the cause of action

at issue here, it is “necessary that the words should have been published concerning the

plaintiff and should have been understood by at least one third person to have concerned

him [or her]. [Citations.] ‘Defamatory words to be actionable must refer to some

ascertained or ascertainable person, and that person must be plaintiff [citations]. If the

words used really contain no reflection upon any particular individual, no averment can

make them defamatory. It is not necessary that plaintiff should be mentioned by name if

the words used in describing the person meant, can be shown to have referred to him and

to have been so understood [citation].’ [Citation].” (Vedovi v. Watson & Taylor (1930)

104 Cal. App. 80, 83.) “’It is the office of the inducement to narrate the extrinsic

circumstances which, coupled with the language published, affect its construction and

render it actionable, where, standing alone and not thus explained, the language would

appear either not to concern the plaintiff, or, if concerning him, not to affect him

injuriously. [Citation].” (Id. at p. 85.)

Bartholomew has provided no theory as to how the generalized statements on the

Community Guideline Tips page were ever ascribed in any particular way to her.

Instead, she goes in the other direction, asserting that YouTube should not “generically

defame people like [herself].” But generic defamation presents fundamental legal

16

problems under California law. “If the group is small and its members easily

ascertainable, [the] plaintiff[] may succeed. But where the group is large—in general,

any group numbering over twenty-five members—the courts in California and other

states have consistently held that plaintiffs cannot show that the statements were 'of and

concerning them,’ [Citations.]” (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033,

1046.)8



Nor do we believe that by linking Bartholomew’s URL to the Community

Guideline Tips that YouTube has made the statements of and concerning her. As we

have discussed above, the sheer breadth of topics covered by these tips simply cannot be

reasonably read to apply to Bartholomew. “In pleading a case of libel per quod the

plaintiff cannot assume that the court has access to the reader’s special knowledge of

extrinsic facts but must specially plead and prove those facts. (Barnes-Hind [supra] 181

Cal.App.3d [at p.] 387; see also Martin v. Sutter (1922) 60 Cal.App.. 8, 13 [citation] [to

establish a case for libel per quod, plaintiff must prove that the publisher of the words

intended they should be understood as imputing wrongdoing or wrong conduct to

plaintiff and that the words were understood in that fashion by those who read them].)”

(Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 7, fn. omitted.) Because

the Community Guideline Tips cannot reasonably be understood as imputing any

particular wrongdoing to Bartholomew (and she has identified none), we find no error in

the trial court’s ruling in this respect.9



8

Bartholomew places emphasis, in urging us to reverse the trial court, on a

statement from our Supreme Court to the effect that “whether or not [an] article is

reasonably susceptible of [a defamatory] interpretation is a question for the court.”

(MacLeod, supra, 52 Cal.2d at p. 546.) The statement at issue in MacLeod, however,

accused a particular individual of being a Communist and did not involve a long list of

generalities as do the Community Guideline Tips. (Id. at p. 543.)

9

To the extent that the two federal cases upon which Bartholomew relies come to

a different conclusion, we respectfully disagree. We do note, however, that in one of

17

IV. The Removal Statement Is Not Defamatory On Its Face

Bartholomew also argues that, even without recourse to the Community Guideline

Tips subsection, the removal statement itself is defamatory.10

Again, the statement reads

simply as follows: “This video has been removed because its content violated

YouTube’s Terms of Service.” Bartholomew concedes that an accusation of a breach of

contract is usually not defamatory in itself but that violating YouTube’s terms of service

is not analogous to a run-of-the mill breach of contract accusation because YouTube’s

terms of service are only violated when someone has “Cross[ed] the Line” or “abuse[d]”

the Web site.

The terms of service, however, are attached to the complaint. They consist of very

fine print, are single-spaced, and are over three pages in length. And though they

incorporate the Community Guidelines, they also incorporate a privacy policy from

Google. They also include such requirements as allowing YouTube to update the user’s

“YouTube Uploader,” (¶ 4.G), and prohibit such things as using YouTube for

commercial purposes without prior written consent (¶ 4.D). Several courts have found

that a statement alleging a breach of contract is not defamatory per se, which must, to



those cases, the plaintiff was able to allege that it was associated with a specific

wrongdoing, “inappropriate children’s content.” (Song Fi, Inc. v. Google, Inc. (N.D. Cal.

Apr. 4, 2016) 2016 U.S. Dist. LEXIS 45547, *8-9.) We also note that while the court in

that decision clearly disagreed with the trial court’s conclusion in this case, it did not

discuss at length what defamatory meaning among the long list of topics covered by the

Community Guideline Tips could be reasonably ascribed to the particular plaintiff in that

case. (Id. at *30.) And we note that, in the other federal decision relied upon by

Bartholomew, the only decision cited to us ended up dismissing the defamation action

because of a failure to plead that the words had a particular meaning, or innuendo. (See

Darnaa, LLC v. Google, Inc. (N.D. Cal. Dec. 2, 2015) 2015 U.S. Dist. LEXIS 161791,

*31.)

10

YouTube asserts that Bartholomew did not raise this issue below. Because it

involves a pure question of law, we will consider it.

18

state a claim for defamation, be supported by innuendo. (See Emde v. San Joaquin

County Cent. Labor Council (1943) 23 Cal.2d 146, 159-160 [“The only remaining

statement subject to challenge is that the dairy violated its contract with the union. Again,

the question of violation of contract is a legal conclusion, but, by innuendo, the

respondents have pleaded that the publication was intended to convey the charge that the

respondents were dishonest. An innuendo, however, cannot ascribe a meaning to

assertedly defamatory matter other or broader than the words themselves naturally bear; it

cannot add to, enlarge, or change the sense of the published words”]; Vedovi v. Watson &

Taylor, supra, 104 Cal.App. at pp. 84-85 [where notice stating that an insurance policy

was cancelled for non-payment of premiums contained nothing that would expose

plaintiff “to hatred, contempt, ridicule or obloquy, or . . . cause[] him to be shunned or

avoided or . . . [have] a tendency to injure him in his occupation, it was obvious that the

notice [wa]s not libelous per se”].)

Indeed, the point is made in a case Bartholomew herself cites to us as authority. In

that case, the plaintiff claimed that he had been defamed because of a statement that his

telephone service had been disconnected due to nonpayment. The court rejected the

contention, noting that “[t]here is no implication that plaintiffs failed to pay their

obligations from dishonest motives or from a desire to defraud their creditor. Absent

some allegation that plaintiffs were engaged in a vocation where credit is an important

asset and necessary for the proper conduct of their business, the instant communication in

a legal sense would not expose plaintiffs to public contempt or ridicule, not tend to

degrade them in society.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 309.)

Given the sheer breadth of the items covered in YouTube’s terms of service, and

even taking into consideration Bartholomew’s profession, we do not think that the

removal statement can be deemed to subject her to “hatred, contempt, ridicule, or

19

obloquy, or [cause her] to be shunned or avoided” or tend to “injure [her] in [her]

occupation.” (§ 45.)11



11

Because we find that Bartholomew has alleged no defamatory meaning, we

need not address the remaining issues she raises, including whether her allegation of

special damages is adequate. In addition, with regard to the relevant allegations

discussed above, Bartholomew has offered no specific way in which she can amend her

complaint to cure the defects. Therefore, the trial court’s sustaining of YouTube’s

demurrer without leave to amend will not be disturbed. (See Palm Springs Tennis Club

v. Rangel , supra, 73 Cal.App.4th at pp. 7-8.)

The trial court is directed to enter, nunc pro tunc as of August 5, 2015, a judgment of dismissal. That judgment is affirmed. Costs on appeal are awarded to YouTube.