YouTube videos aren't commercial advertising/promotion even if some commercial info is in channel bio

Wealthy, Inc. v. Cornelia, 2023 WL 6379449, No. 2:21-CV-1173 JCM (EJY) (D. Nev. Sept. 29, 2023)

“This action arises out of a series of interviews published on YouTube and conducted by Cornelia that plaintiffs perceive as defamatory.” Buczkowski is the owner and operator of Wealthy, allegedly a “leading entrepreneurship, finance, business, real-estate and self-improvement company.” Buczkowski has 23,700 subscribers on YouTube, and his videos have garnered over 1.2 million views.

Cornelia also has a YouTube channel with approximately 150,000 subscribers, publishing videos on investing, business, and fitness that have received over 13.8 million views. Cornelia published a series of videos entitled “Authentic or Charlatan” in which he claims to expose “fake gurus on social media.” Defendants produced multiple interviews with another internet personality, John Mulvehill, a dating and self-improvement coach who made most of the challenged statements: that Buczkowski (1) lied about his educational achievement; (2) laundered money; (3) manufactured and/or sold illegal drugs; (4) framed Mulvehill for his 2013 arrest in Las Vegas, leading to four felony and four misdemeanor charges; and (5) was involved in the death of a 28-year-old woman who was the alleged victim in the arrest of Mulvehill.

Buczkowski sued for (1) unfair competition and false advertising under the Lanham Act, (2) defamation, (3) intentional infliction of emotional distress, and (4) business disparagement.

Although the court didn’t apply Nevada’s anti-SLAPP protections because they failed to show by a preponderance of the evidence that the statements were made in good faith because their gist or sting was substantively true, defendants still prevailed.

There was evidence that Cornelia researched Mulvehill’s claims and sources, which was sufficient to show there was no actual malice on his part. For example, in his deposition, Cornelia testified that he received information from Mulvehill, including a video from a former employee of plaintiffs who corroborated claims about plaintiffs’ unethical business practices and their using young, unqualified people to write the instructional and promotional material for plaintiffs’ courses. Cornelia never had any information contradicting negative claims about plaintiffs when the videos were published. “Even if Cornelia were mistaken, his conduct is not remotely close to constituting reckless disregard.”

False advertising: This wasn’t commercial speech because the accused videos weren’t ads. Although plaintiffs argued that defendants promoted Cornelia’s “house hack expert book” and a “first 1,000 subscribers mentoring program,” those were present in Cornelia’s biographical YouTube information, not any of the videos themselves. “The subject of this action is the YouTube videos themselves, not the YouTube channel as a whole.” The closest they got was that, in the first video, Mulvehill said without prompting: “you do have some real estate stuff on the side.” Cornelia said “right” and didn’t elaborate.