Reddit cannot be sued for sex trafficking if it didn't knowingly permit sex trafficking. That's the gist of a recent ruling from the U.S. Court of Appeals for the 9th Circuit.
The case—Doe v. Reddit—was brought by six Jane Does, who say Reddit users circulated sexually explicit images of them that were taken when they were underage. Reddit removed the photos when notified, but the Does argue that Reddit was not quick enough in doing so and that it failed to prevent users from re-uploading the removed images. They say this made Reddit complicit in a sex trafficking venture.
In an October 24 decision, 9th Circuit justices disagreed. They note that because Reddit is an "interactive computer services" provider, it's generally immune from legal liability for user-posted content.
This immunity is explicitly laid out in Section 230—sometimes called "the internet's First Amendment." Section 230 says neither web users nor service providers shall be treated as the "publisher or speaker" of speech from "another information content provider." For instance, if you slander someone on YouTube, it's you—not YouTube—who can be sued.
The 2018 Allow States and Victims to Fight Online Sex Trafficking Act—better known as FOSTA—carved out an exception to Section 230 for claims involving sex trafficking. But no one was quite sure how wide that exception was.
Section 230, FOSTA, and Uncertainty Regarding Immunity
The premise for FOSTA was always misleading, with politicians and advocates insisting it was urgently necessary to stop child sex trafficking websites. But Section 230 doesn't apply to people or platforms that break federal criminal laws. If someone ran a site designed to facilitate forced or underage prostitution, they could be held criminally liable, Section 230 notwithstanding. A person directly involved in criminal activity doesn't get immunity just because they broker it through a website. What Section 230 does do is give websites some protection against liability for incidental facilitation of crimes. A state attorney general can't sue a site like Craigslist if it unwittingly facilitates an illegal gun sale. You can't bring a lawsuit against Facebook if someone DMs you threats. And so on.
For sex trafficking cases, this meant victims could bring civil lawsuits against those directly involved in exploiting them (a cause of action set out in Section 1595 of the federal criminal code). But they would be unsuccessful in suing something like a social media site, dating app, or classified ad platform just because the perpetrator used such services to facilitate the exploitation. If they tried to bring such cases—and quite a few did—courts would quickly say such cases were barred by Section 230.
FOSTA changed the rules of Section 230 somewhat by amending federal law "to clarify that section 230…does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking."
Specifically, FOSTA said Section 230 didn't apply if the underlying claim or offense would constitute a violation of Section 1591 of the federal criminal code—the section banning sex trafficking of minors or sex trafficking by force, fraud, or coercion—or of a new provision in FOSTA that bans operating an interactive computer service "with the intent to promote or facilitate the prostitution of another person."
So, in a post-FOSTA world, someone who says they were sex trafficked and Reddit helped facilitate it could sue Reddit and perhaps have a chance of winning, or at least at getting the case to trial.
The unanswered question was just how radical FOSTA's amendment of Section 230 was.
It was unclear whether FOSTA meant platforms "could be held liable when their users violated the sex trafficking statutes underlying FOSTA, or whether they themselves had to violate those laws," noted lawyers Dillon Kraus, J. Alexander Lawrence, and Aaron Rubin at JD Supra. Now, for the first time, "a federal court of appeals has interpreted how broadly the FOSTA exception to Section 230 applies."
A Refreshingly Narrow Exception
The 9th Circuit interpreted FOSTA to carve out a refreshingly narrow exception to Section 230 protections.
"The dispute in this case is whether the availability of FOSTA's immunity exception is contingent upon a plaintiff proving that a defendant-website's own conduct—rather than its users' conduct—resulted in a violation of [federal sex trafficking laws]. We hold that it does," the court ruled, upholding a ruling from a lower court saying that Section 230 barred the Jane Does' lawsuit.
The Does in this case failed to prove that Reddit knowingly benefited from the posting of their images. That means that Reddit's conduct did not violate federal sex trafficking law, which requires violations to be done "knowingly" and—in cases that revolve around claims that an entity is guilty not through direct action but through "participation in a venture"—for some sort of personal benefit.
If Reddit itself did not knowingly benefit, there was no underlying criminal conduct here to justify a civil lawsuit.
"That cause of action required that Reddit's own conduct to violate section 1591, not the conduct of its users," noted Kraus, Lawrence, and Rubin. "This finding ultimately means that the plaintiffs' claims against Reddit could not have survived, even if Section 230 did not exist at all."
Overall, the ruling is good news for those who value internet freedom—which is not to say that posting sexually explicit images of minors should be allowed. Yet the fact is that Reddit and other mainstream websites do not allow this sort of activity. It's banned by their terms of service and it gets removed when Reddit is notified. But altering the liability balance here could incentivize websites not to engage in content moderation or provide a notification process at all, since being notified could make them more liable—which would mean even more illegal and unsavory content could flourish on them.
In short: A robust reading of Section 230 keeps more bad stuff off the internet.
Likewise, a finding that federal law only allows civil claims against websites that engage in sex trafficking themselves helps prevent courts from getting clogged with frivolous lawsuits, and tech companies from having vast amounts of time and resources eaten up by such suits.
The 9th Circuit's ruling is welcome news for all who feared a more expansive interpretation of FOSTA. But it also shows how FOSTA—despite all the fanfare surrounding its passage—was wholly useless and unnecessary.