In March 2012, 15-year-old “S” was sold in the metro D.C. area as a 19-year-old “Judy.” In June 2012, a 16-year-old from Maryland, was trafficked by a pimp who posted her on Backpage.com for a series of days with the subject line “My hour glass body is waiting for you. Apple booty a?? ..” These are examples of underage girls being advertised on Backpage. Three victims have sued, in Washington state. Is Backpage immune from liability for ads placed on its website advertising sex with minors? Yesterday, the WA Supreme Court heard oral arguments on this question.
When Congress passed Section 230 of the Communications Decency Act, they intended to encourage freedom of expression on the internet rather than limit it. Toward that end, they passed the law to shield from liability providers and users of an “interactive computer service” who publish information provided by others:
In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:
1. The defendant must be a “provider or user” of an “interactive computer service.”
2. The cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue.
3. The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.
If people could sue a site owner every time they felt like they were mischaracterized, it would create a chilling effect on the free-flow of information on the internet. That makes sense as long as everybody is acting in good faith. The problem is that the owners of Backpage, while they may not have penned the ads themselves, know what is going on, and they are encouraging it, by promoting their “escort” ads. They are the online go-to for prostitution. President and CEO of the National Center for Missing and Exploited Children, John D. Ryan writes:
Backpage’s business model makes it easy to sell children for sex on the Internet, enabling traffickers to remain anonymous. They can buy an ad with prepaid credit cards or even bitcoin. They don’t have to provide a phone number. Backpage doesn’t verify identities or ages of customers buying ads or children depicted in ads. Traffickers buy ads to sell children, and Backpage pulls in millions in ad revenue each month. No one has been able to stop it.
Now the stage is set for a classic David-and-Goliath conflict at the state Supreme Court. Three children who were sold for sex on Backpage have sued for damages. On Tuesday, Backpage will ask the justices to throw out the case.
Backpage argues that the federal law shields them from liability. Because they did not write the ads on the site, they have asked the high court to throw out the lawsuit.
Procedurally, the victims filed a lawsuit alleging that Backpage is in the business of promoting not just prostitution but prostitution of children. They claim that the immunity in Section 230 does not apply to Backpage because the site is not an innocent bystander. Rather, it knowingly promotes the exploitation of children for sexual purposes through its escort ads, doing little to report suspected offenders.
Rules of civil procedure have a provision under civil rule 12(b)(6) where a defendant can move to dismiss on the ground that even if every allegation the plaintiff made is true they would not be entitled to favorable judgment. This is a screening tool, prior to discovery, that weeds out frivolous suits. Backpage moved to dismiss under 12(b)(6) in the trial court, but the judge denied the motion, agreeing with the plaintiff that Section 230 was not enacted by Congress to pimp out underage girls for sex. Backpage appealed. Oral arguments were presented in the WA Supreme Court yesterday.
The victims’ lawyer said that Backpage is the largest website linked to human trafficking in history, and that it’s easy for pimps to post their victims on the site, to which one Justice said, “Your whole case rises and falls on whether Backpage is responsible for development of content.”
Is ‘encouragement’ enough to qualify for “development of content,” or is development of content strictly limited to the people who write the ads? Backpage knowingly makes money from its escort section, which isn’t interpreted as something else, most of the time. As the victims’ lawyer pointed out, it isn’t taken to mean “having an interesting conversation with a seventh grader in her underwear.” Is it enough remedy to tell victims to sue their pimps, and shield the site from liability under the free speech assured by Section 230, when it comes to exploitation of children? The court may rule in a few weeks.
Meanwhile, a similar suit has been filed in Massachusetts.
Oral arguments: J.S., S.L., & L.C. v. Village Voice Media Holdings, LLC, et al.