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The limits of free speech (when you have 50 million YouTube subscribers)

A lawyer explains freedom of speech, censorship and contracts

PewDiePie looking at camera
Want to make money, while saying whatever you want? Good luck

There is an increasing amount of noise surrounding “freedom of speech,” “fake news,” and everyone’s right to be heard. This has particular bearing on the gaming community, where the term “freedom of speech” is often used incorrectly.

On the other hand, online personalities are often playing a role in game marketing, and issues with GamerGate and other hate groups latching onto gaming means that games, studios and publishers are confronted with the task of moderating community and forum posts and interactions while being told they are censoring others. Hence, depriving someone of their right to free speech.

As an entertainment attorney with over seven years of experience in a practice dedicated exclusively to gaming culture and industry, this has been an ongoing cause for concern. It’s an issue my clients face daily.

Legally, there’s no argument to be had. Let me explain why.

No One is Entitled to a Platform

Felix Kjellberg, aka PewDiePie, blamed the press immediately after apologizing for his bad judgement, which brings up some interesting legal points about his situation.

He seemed to be operating under the assumption that the Wall Street Journal and mainstream media intentionally destroyed his business relationships. However, based on his own explanation, it’s more than likely he broke his contract under any number of contract theories, as we’ll examine below.

This was my first notice of PewDiePie, so I’m not bringing any baggage into this debate. I don’t like him or dislike him. I just know he’s being widely discussed, and I’m familiar with the legal aspects of these situations.

His departure from Google and Disney seems like a no-brainer to anyone with a basic understanding of entertainment contracts. His first mistake likely came from his presumption that either Google or Disney have a sense of humor, or value him for his comedic chops.

The contracts he signed with Google (through YouTube) and Disney (through Maker Studios) should have made it apparent that they do not. Any tolerance on their part would be based on financial interest, not out of any respect for his freedom of expression or his budding career as a “rookie comedian.” That is not the business they are in, as evidenced by how quickly they dropped him when his humor became a liability.

Companies typically won’t support you when doing so will harm their brand or otherwise expose them to liability. That’s why YouTube has a code of conduct, and why most contracts for endorsement include rather robust non-disparagement/no disparaging effect clauses. Disney includes this in its terms of use:

“You may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.”

Or, if you’d like a more direct example from one of my own agreements:

“Influencer may not: [….] engage in conduct or a pattern of behavior that may: (i) diminish Influencer’s reputation as a personality in the gaming community; or (ii) as a result of [Company’s] association with Influencer, harm [Company’s] reputation.”

Typically a non-disparagement clause won’t act alone to limit influencer conduct in an agreement. Some agreements will include strong “moral” clauses, broad warranties and representations, and at will termination as additional means of controlling the influencer or providing backers a buffer if the Influencer’s conduct creates a problem.

For example, a moral provision may prohibit an influencer from engaging in behavior in his or her private life that may amount to a scandal, while almost any reps and warranties provision will include a proviso prohibiting content that is defamatory or otherwise subject to legal action. The goal is to make sure, if you get into a scandal, you can be cast off quickly and with little legal repercussion.

Read every word of your contract

In the interest of fairness, it is possible that the relevance of such provisions weren’t made clear to Kjellberg. In an effort to court lucrative talent, backers may treat such verbiage as boilerplate until and unless something triggers it. I’ve heard “they said we don’t need to worry about that part,” from more than a few clients.

This doesn’t absolve responsibility on the part of the talent. You should read and treat as enforceable anything you want to sign. If you’re not sure, consult an attorney and save yourself trouble down the road. However, it’s generally common sense that companies like Google and Disney are in this for two main reasons: it helps their bottom line, and it’s good for brand building.

When an influencer under contract does something that harms that brand, that influencer is materially breaching their contract. That means termination.

It’s possible that the relationship can still be repaired. However, he broke the rule any competent attorney would advise in a matter concerning an open dispute: the less you say, the better. An eight minute diatribe placing blame on third parties and treating your business partners as complicit in the conspiracy against you probably isn’t going to help smooth this out.

Thus my surprise when Kjellberg admitted that his content was offensive and he crossed the line, that he exhibited poor judgment and that his amateurish attempt at comedy was a failure. He effectively admitted to breaching his contracts with Disney and Google, and then immediately sought to blame the press.

The context for his “joke,” and whether mainstream media took it out of context, never really had anything to do with it. It’s reasonable for companies like Disney and Google to consider mainstream media as the litmus test for what is considered offensive; their respective brands cater to a far broader demographic than PewDiePie’s followers, after all.

Welcome to the wonderful world of entertainment, Felix. You’ve joined an elite club of performers, comedians and artists who crossed the line. No one is entitled to a platform, and your platform is a privilege that you will lose if you breach the terms under which that platform operates. In all likelihood you broke your contract. You even explained how you broke that contract in a video. It’s irrational to conclude that a third party is responsible for the failure of your contract.

This Has Nothing to do With Free Speech

More alarming is the response by supporters, or rather, the response against detractors. The idea that companies or institutions are infringing on someone’s freedom of speech is commonly expressed, often in very strong language. When Twitter banned Milo Yiannopolous, we heard the same refrain. Kjellberg himself has already confirmed that a subset of his fan base consists of white supremacists. As many of us have witnessed, that particular subset is known to be more vocal about a perceived injustice than your average netizen.

Let me go ahead and get this out of the way:

A private individual’s right to tell you to shut up, and a company’s right to censor your offensive content, are both protected by the first amendment.

If a client of mine terminates a player’s subscription because they violated a game’s code of conduct by spamming a chat channel with anti-Semitic rhetoric, they are well within their contractual rights to terminate that subscription. Your participation on a platform like Twitter, YouTube or one of the excellent games offered by my clients, however, is not. That is strictly governed by the Terms of Service or EULA you agree to when you sign up.

If you are an Influencer, your continued support from your backers is contingent on your compliance with whatever non-disparagement language you’ve agreed to. Almost every platform available to you is offered by a private entity. Surprise! Welcome to Capitalism!

The first amendment isn’t prohibitive against society at large; it protects society from government action. This typically shouldn’t be a point of confusion, as the text itself is clear and unequivocal:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The context of “free speech,” in roughly every territory where free speech exists, is uniformly a limitation on government power to suppress that right. Your personal feelings about censorship notwithstanding (or mine, for that matter), your only recourse against censorship on a platform provided by a private company is to not use that platform. There is no legal recourse. In fact, if there were, that really would violate the First Amendment. Clearly no one wants that.

When someone decries “censorship” and claims “free speech,” they generally are not talking about the right to say what they want. They are talking about the right to say what they want wherever they want to share it, and that is a distinction that crosses the line between “fundamental human right” and “moral rationalization.”

No one is morally obligated to listen to another person’s opinion. No one should feel morally obligated to offer a platform for someone’s message when they consider that message offensive. Freedom of speech does not place one person’s rights above another person’s right, simply because the other provides the platform. That rationale subverts the fundamental right to freedom of speech generally.

What does this all mean?

We like to see the Internet as an open platform for the free exchange of ideas. Many of the companies who make the Internet possible, and they are each and every one private corporations, do their best to make that a reality.

But as we begin to recognize the risks associated with that free exchange, companies must take measures to safeguard the privacy and happiness of their consumers. This necessarily means censoring the content shared online. We are comfortable with censorship intended to protect us (e.g., prohibitions against sharing your personally identifiable information, passwords, etc. online), but we are less comfortable with censorship designed to protect others (e.g., codes of conduct).

The bottom line is that when you engage in free speech online, you typically do so as a consumer of the platform you are using. Normally you won’t have the opportunity to negotiate the contracts you are bound to (whether it be a ToS or EULA) when you use those services.

Even the most successful influencers, Kjellberg included, are bound by provisions that limit their behavior. Ironically, they are often subject to greater restrictions because of their influence on the brand. The reality is that your right to free speech may directly conflict with the agreement you’ve entered, and engaging in some kinds of speech will almost certainly cost you a contract.

Mona Ibrahim is a Senior Associate at Interactive Entertainment Law Group. She is an avid gamer and has dedicated her career to counseling the video game industry and indie development community.

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