Joette Katz Authors Connecticut Law Tribune Article Entitled "Revisiting the Fight Against Online Sex Trafficking

Section 230 of the 1996 Communications Decency Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The provision essentially shields companies from being sued by anyone who feels wronged by something someone else has posted. Section 230 also allows social platforms to moderate their services by removing posts that, for instance, are obscene or violate the services’ own standards, so long as they are acting in “good faith.”

The measure’s history dates back to the 1950s, when bookstore owners were being held liable for selling books containing “obscenity” One case eventually made it to the Supreme Court, which held that it created a “chilling effect” to hold someone liable for someone else’s content. Smith v. People of the State of California (Los Angeles ordinance, dispensing with element of “scienter”—knowledge by bookseller of contents of book—and imposing a strict criminal liability on bookseller possessing obscene material, had such tendency to inhibit constitutionally protected expression that it could not stand.)

Fast forward to the newly formed internet companies like CompuServe and Prodigy, offering online forums, and to decisions by courts that considered them responsible for content because “they exercised editorial control…more like a newspaper than a newsstand.” Section 230 was born in response, providing immunity from most lawsuits over online speech, followed by the 2018 amendment, Allow States and Victims to Fight Online Sex Trafficking Act, or FOSTA, essentially a sex-trafficking law that carved out an exception to Section 230 for material that “promotes or facilitates prostitution.”

Just last month the US Supreme Court refused to limit the broad liability shield for social media companies, including Twitter Inc., Facebook Inc. and Alphabet Inc.’s Google. In those cases, the court left Section 230 intact, insulating Google and Twitter from liability for terrorist content on their platforms. But the court turned away an appeal from victims of child pornography who claimed that Reddit Inc. knowingly facilitated and benefited from images of child sexual abuse. Jane Does, et al v. Reddit, Inc. The victims in the lawsuit had argued the 2018 sex trafficking amendment enabled them to sue Reddit for providing a platform for images of their abuse. They said Reddit “has engineered a social media platform where child pornography proliferates.”

The district court had granted Reddit’s motion to dismiss, holding that as an interactive computer service, Reddit is protected by Section 230, and in short could not be held liable for violating sex trafficking laws when people use its platform to post pictures of minors being abused. On appeal, the Ninth Circuit affirmed the lower court’s ruling and considered the scope of the FOSTA immunity exception for the first time.

The liability shield does not apply when the conduct underlying the claim constitutes a violation of the federal criminal sex trafficking ban. But, as written, according to the Ninth Circuit, the statute implicates two different requirements: under the criminal sex trafficking ban, plaintiffs have to show that internet platforms “knowingly benefited” from trafficking; in contrast, to bring a civil claim for sex trafficking, the plaintiffs need only to show that the websites “knew or should have known” of the trafficking. In interpreting the statute narrowly, the court held that in order for the FOSTA exception to apply, the higher “knowingly benefited” standard must be met. The site had to have knowledge of the activity, and the defendant-website’s own conduct, rather than the conduct of a third party, must have violated the underlying criminal sex trafficking ban in order for FOSTA to apply.

Thus, plaintiffs’ allegations that Reddit “turned a blind eye” towards the unlawful content posted by its users failed to show that Reddit actively participated in sex trafficking. Bottom line: Reddit was still protected by Section 230 because the sex trafficking victims had failed to prove the company actually knew about the abuse on its platform.

So, when, without comment, the justices of the United States Supreme Court left in place that Ninth Circuit Court of Appeals decision in Reddit’s favor, they bestowed an important victory for the proponents of Section 230. The ruling in Jane Does, et al v. Reddit, Inc. is the first federal appellate court decision addressing internet platforms’ Section 230 immunity under the 2018 Amendment. The decision will likely preclude a string of similar cases in federal circuit courts and sets the stage for more debate over the future of Section 230. While social media companies have aggressively defended Section 230 as a necessary protection against a likely avalanche of multimillion-dollar lawsuits over vile and harmful online speech, there may be no similar strength attacking Section 230 when it comes to FOSTA claims.

Calls have come for a rethinking of Section 230 to ensure that companies like Reddit can be held accountable for violating sex trafficking laws when people use its platform to post pictures of minors being abused. “Child pornography is the root cause of much of the sex trafficking that occurs in the world today, and it is primarily traded on the internet, through websites that claim immunity” under Section 230, the plaintiffs said in their appeal to the Supreme Court. Allowing the Ninth Circuit’s decision to stand, they added, “would immunize a huge class of violators who play a role in the victimization of children.” They are correct. Now, hopefully, there will be a sound legislative response.

Copyright 2023. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune [https://www.law.com/ctlawtribune/2023/06/06/revisiting-the-fight-against-online-sex-trafficking/], reprinted by permission.