Ninth Circuit may consider if websites can be held liable for child pornography or sex trafficking

In the past few months, federal district courts have issued conflicting decisions on whether internet media sites such as Twitter, PornHub/MindGeek, and Reddit can be held liable for unlawful pornographic content uploaded to their websites by others. In fact, the courts’ decisions sometimes even conflict with their own prior rulings on the same issue, with more than one court changing its mind after thinking about it further.

The basic charge in these cases is that these websites not just allow, but actively encourage, the uploading of child pornography. They do this through techniques like promoting the videos with playlists like “less than 18” and “underage” and advising uploaders to tag the videos with things like “teen,” “school,” babysitter” for greater visibility. This is all done, the plaintiffs allege, to drive traffic, and thus revenue, to the providers’ sites. One plaintiff also claims that a company allowed her ex-boyfriend to upload to PornHub and RedTube a “revenge porn” video of her taken when she was only 16.

The legal questions involved in these cases are novel and involve the interplay of new and tricky statutes, including the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. §§ 1595 and 1591, the Communications Decency Act (“CDA”), 47 U.S.C. § 230, the Fight Online Sex Trafficking Act (“FOSTA”) that creates an exemption from the protections of the CDA, the federal prohibition on the receipt and distribution of child pornography, 18 U.S.C. §§ 2252A, and California’s Trafficking Victims Protection Act, Cal. Civ. Code 52.5.

Nevertheless, the fundamental issue in all the cases is whether the CDA provides the offending websites with blanket immunity from the claims. Without going too deep down the legal rabbit hole, the CDA was designed to protect website creators and hosts from liability for offending or illegal content uploaded by third parties. Technically

speaking, the CDA protection applies when the defendant is: (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat as a publisher or speaker (3) of information provided by another information content provider.

So far, the federal district courts have been unable to reach a consensus on how this immunity applies to claims of child pornography and facilitating sex trafficking. Initially, many ruled the CDA immunity did not apply. However, a few have since reversed course and a few others are currently entertaining requests for reconsideration.

But just last week, a judge in the Doe v. Twitter case, 21-cv-00485 (N.D. Cal.) certified the issue for interlocutory appeal to the Ninth Circuit and stayed all proceedings. So assuming the Ninth Circuit agrees to hear the matter, it could decide a hugely important question of ecommerce liability.