Brazilian Injunction Ordering Google to Remove Allegedly Libelous YouTube Video Can't Be Enforced as to Display of Video in U.S.

From Judge Beth Labson Freeman (N.D. Cal.) Wednesday in Google LLC v. Latam Airlines Group S.A. Inc.:

On June 28, 2018, Raymond Moreira, a United States citizen residing in Florida, uploaded two videos to the YouTube channel "Ingles Marcos." The videos are titled[, in English translation, roughly] … "Latam Airlines sexual abuse of a child under 6 years old." In these videos, Mr. Moreira interviews his six-year-old son, who describes alleged sexual abuse he experienced at the hands of one of LATAM's employees while traveling as an unaccompanied minor from Brazil to Florida on May 3, 2018, to May 4, 2018.

In July 2018, TAM (LATAM's wholly owned Brazilian subsidiary) sued GBIL ("Google Brasil") (Google's wholly owned Brazilian subsidiary) in Brazil…. [T]he Superior Court of Justice in Brazil [entered a] … "Global Removal Order" … applicable worldwide.

Google has restricted access to the videos in Brazil…. [But] Google requests … that LATAM be enjoined from any conduct in the United States or Brazil to enforce the Global Removal Order in the United States….

[A.] The court issued a preliminary injunction, partly because it found Google was "likely to succeed on the merits of its claim under section 230 of the Communications Decency Act because this provision immunizes providers of interactive computer services from liability arising from content created by third parties":

[T]he Global Removal Order would hold Google liable as the "publisher or speaker" of the information provided by Mr. Moreira. In Google LLC v Equustek Solutions, Inc. (N.D. Cal. 2017), the court held that a Canadian order requiring Google to take down websites from its global search results "treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results." The Court finds that the Equustek court's reasoning applies with full force here…. "[R]emoving content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove." ….

[B.] It also rested the preliminary injunction in part on a conclusion that "any enforcement of the Global Removal Order in the United States would violate the [SPEECH] Act":

Under the SPEECH Act, a United States Court "shall not recognize or enforce a foreign judgment for defamation" unless (1) it determines that the law applied by the foreign jurisdiction "provided at least as much protection for freedom of speech" as the First Amendment or (2) that the "party opposing … enforcement of that foreign judgment would have been found liable for defamation" by a United States Court applying the First Amendment. 28 U.S.C. § 4102(a)(1)….

Assuming they relate to matters of public concern, Mr. Moreira's videos cannot support a claim for defamation in the United States unless they were false and made with actual malice. Under Brazilian law, a claim for defamation requires something less. Article 139 of the Brazilian…. Accordingly, Brazil's defamation standard is less protective of speech than is the First Amendment. The Court also finds that Mr. Moreira would likely not be found liable for defamation under United States law…. The Court therefore finds that Google is likely to prevail on the merits of its SPEECH Act claim.

[C.] The preliminary injunction also rested in part on "international comity":

California law provides that foreign judgments should not be recognized where "[t]he judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state or of the United States."  …

A court in this district has barred enforcement of a foreign injunction that required an internet company to block the access of French users to a website. Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme (N.D. Cal. 2001), rev'd on other grounds (9th Cir. 2006)…. As explained above, the Global Removal Order is likely at odds with section 230 and the SPEECH Act. As a result of these stark differences between foreign and United States law, the Court concludes that Google is likely to prevail on the merits of its international comity claim.

[D.] The district court declined to dismiss Google's intentional interference with contractual relations claim (that was the one claim LATAM sought to dismiss outright):

In California, a claim of intentional interference with contractual relations requires "(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." Where the contract is at-will, a plaintiff must also plead an independently wrongful act…. [T]he Court finds that Google has adequately pled claims under the Communications Decency Act, the SPEECH Act, and international comity. The Court therefore agrees with Google that LATAM's seven-year-long campaign to obtain a global removal order is independently wrongful because, under the facts alleged, the order LATAM has sought violates United States Law…. The Court [also] finds that Google has pled sufficient facts to avoid the [California litigation privilege as to its] allegation that LATAM engaged in a course of conduct in pursuit of an injunction that violates United States law. This issue cannot be settled at this point, however. Additional briefing on a more developed record at summary judgment will be required for the Court to conclusively consider the issue….

[As to disruption of a contractual relationship,] "To state a claim for disruption of a contractual relation, the plaintiff need not show the defendant induced an actual or inevitable breach of the contract. It is sufficient to show the defendant's conduct made the plaintiff's performance, and inferentially enjoyment, under the contract more burdensome or costly." A claim for intentional interference can flow from conduct that renders a contract less valuable…. Google … allege[s] that the Global Removal Order undermines YouTube's "right to host the videos that Mr. Moreira posted" and that Google will suffer harm as a result. Accordingly, the Court finds that Google has sufficiently pled actual disruption and resulting harm….

But it also declined to rest the preliminary injunction on this particular claim:

Google avers that it will be "denied the benefit of its contract with Moreira" absent preliminary relief, which will in turn lead to the chilling of speech, harm to Google's goodwill and reputation, and interference with Google's mission to provide a forum for speech. In support of this argument, Google points to a declaration that states that the Global Removal Order (1) "inhibits YouTube's mission … to give everyone a voice and show them the world," (2) "undermines YouTube's goodwill and reputation as a place for users to speak freely and to freely access information," and (3) has the potential to "allow the least speech-friendly jurisdictions to control global access to content." The Court finds that the harms Google describes are amorphous…. Accordingly, the Court finds that Google has not shown a likelihood of success on the merits with respect to the disruption and harm elements of its intentional interference claim….

[E.] The court concluded that it didn't need to reach Google's claim that enforcing the injunction would violate the First Amendment (a matter the court thought was uncertain because "it is not clear that the First Amendment applies against a foreign private party acting abroad or as to a foreign judicial order").

[F.] The court therefore enjoined Latam and Tam from:

1. Enforcing or in any way attempting to enforce the orders from the Superior Court of Justice in Brazil dated December 3, 2024; March 21, 2025; and June 23, 2025, or any subsequent orders issued by the Superior Court of Justice in Brazil in this dispute that would affect the availability of the Testimonial Videos in the United States (collectively, the "Global Removal Order"), in any court in or of the United States of America;
2. Enforcing or in any way attempting to enforce or seek penalties for any alleged failure to comply with the Global Removal Order in any court in or of the Federative Republic of Brazil in any manner that would affect the availability of the Testimonial Videos in the United States.

David H. Kramer, Eric Thomas Kohan, Ian Flannigan Sprague, and Steffen N. Johnson (Wilson Sonsini Goodrich & Rosati) represent Google.