United States: First Circuit: CDA Bars Action Claiming Websites Facilitated Sex Trafficking

Robert L. "Rob" Rogers III is a Senior Counsel in our Orlando office.

Communications Decency Act Immunizes Websites for Policies that Fail to Prevent Crimes

HIGHLIGHTS:

• In affirming the dismissal of an action seeking damages for violation of federal laws barring sex trafficking, the U.S. Court of Appeals for the First Circuit has affirmed the immunity afforded to website operators under the Communications Decency Act (CDA) for crimes committed by its users, even if the operators designed their websites to facilitate such crimes.
• The First Circuit affirmed that "claims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by Section 230(c)(1)" of the CDA.

In affirming the dismissal of an action seeking damages under the federal Trafficking Victims Protection Reauthorization Act (TVPRA), the U.S. Court of Appeals for the First Circuit rejected "end run" arguments from the plaintiffs to avoid the robust immunity afforded to website operators under the Communications Decency Act (CDA). The First Circuit's opinion importantly affirms that websites cannot be liable for the tortious conduct of their users, even if they facilitate such conduct through their user rules and even if the tortious conduct is particularly deplorable. See Jane Doe No. 1 v. Backpage.com, 2016 WL 963848 (1st Cir. Mar. 14, 2016).

Plaintiff Claims Website Designed to Encourage Sex Trafficking

Jane Doe involves disturbing claims about sex trafficking offenses committed by users of Backpage.com that led to thousands of rapes of teenage women. The plaintiffs alleged that they were exploited illegally for sex by traffickers who posted or forced them to post ads for escort services on Backpage.com, a website that sells online classified advertising. They further alleged that Backpage.com deliberately structured its website to facilitate sex trafficking by, for example, not requiring phone number or email verification from users, removing metadata from photographs of escorts and allowing ads to use terms like "brly legal" or "high schl." The victims claimed that by structuring its website in this manner, Backpage.com violated the TVPRA prohibition against "knowingly benefiting financially" from "participation in a venture which that person knew or should have known was engaged in" sex trafficking.

Court: Sex Trafficking Action is Barred by the CDA

In their lawsuit against Backpage.com, the plaintiffs asserted counts for violations of the TVPRA, unfair business practices and violations of their intellectual property rights (by allowing the plaintiffs' photos to be posted without their consent). The U.S. District Court for the District of Massachusetts dismissed the plaintiffs' TVPRA claim on grounds that Backpage.com was immune to those claims under the CDA. The court further dismissed their unfair business practice claims on grounds that the alleged causation was too speculative and dismissed their intellectual property claims on grounds that such actions could be asserted against only the traffickers.

On appeal, the First Circuit affirmed the District Court's rulings in a strongly worded opinion that not only affirmed the expansive immunity to website operators afforded under the CDA, but chided the plaintiffs' "attempted end runs" around CDA immunity as "futile," even though the plight of the plaintiffs "evokes outrage." The First Circuit further expounded that "Congress did not sound an uncertain trumpet when it enacted the CDA and chose to enact broad protections to internet publishers," and if "the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation."

CDA Protects Websites From Liability for Sex Trafficking by Users

The CDA immunizes website operators for statements posted by others by prohibiting "providers of interactive computer services" from being treated as "the publisher or speaker of any information provided by another information content provider" (47 U.S.C. §230(c)(1)). Courts have long held that website operators are not liable for defamatory posts by website users merely because they invite visitors to post potentially defamatory statements. Such protections immunize website operators from all actions seeking to impose liability for their exercise of a publisher's traditional editorial functions, such as deciding what to publish or remove, and apply even to operators who refuse to remove offensive or defamatory content from their sites.

In Jane Doe, the plaintiffs argued that the CDA immunity did not apply to their TVPRA claim because they sought relief therein for Backpage.com's alleged "participation" in sex trafficking, not for its harmful exercise of its editorial functions. But the First Circuit disagreed, explaining that "[w]ithout exception, the appellants' well-pleaded claims address the structure and operation of the Backpage website, that is, Backpage's decisions about how to treat postings. Those claims challenge features that are part and parcel of the overall design and operation of the website (such as the lack of phone number verification, the rules about whether a person may post after attempting to enter a forbidden term, and the procedure for uploading photographs). Features such as these, which reflect choices about what content can appear on the website and in what form, are editorial choices that fall within the purview of traditional publisher functions."

"Whatever Backpage's motivations, those motivations do not alter the fact that the complaint premises liability on the decisions that Backpage is making as a publisher with respect to third-party content." Any "claims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by Section 230(c)(1)" of the CDA.

The First Circuit further rejected the plaintiffs' argument that their TVPRA claim fits under the CDA's exemption to immunity for actions to enforce federal criminal statutes, since the claim sought a civil remedy under a federal criminal statute and was not federal criminal prosecution.

Conclusion

Jane Doe No. 1. v. Backpage.com affirms the important principle that website operators cannot be liable for the harmful use of their websites by third parties, even if the websites are structured in a way that enables such harmful use and the use amounts to a deplorable crime. Its importance is magnified by the rising frequency of lawsuits attempting to chip away at CDA immunity, particularly as website operators await the Ninth Circuit's decision following its rehearing in Jane Doe No. 14 v. Internet Brands, in which the Ninth Circuit initially ruled in 2014 that the CDA does not bar actions against website operators for failure to warn. The First Circuit's latest opinion signals that at least one Circuit Court will not accept plaintiffs' invitations to chill the commercial use of websites by eroding the CDA.

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