Internet intermediary immunity provision takes a (small?) hit

Having just commented a week or so ago about the significant role that the immunity provisions of Section 230 of the Communications Decency Act have played in shielding Internet intermediaries from liability claims arising out of content provided by their users, I was dismayed to see the decision recently handed down by the Washington Supreme Court in the case of J.S. v. Village Voice (opinion available here). [Full disclosure: I was among the group of 10 law professors who submitted an amicus brief—authored by the VC's own Eugene Volokh—in the case, arguing for the position that the court, 6-3, rejected.]

Here are the facts (from the court's opinion):

Advertisements featuring three minor girls, J.S., S.L., and L.C. (collectively J.S.), allegedly were posted on a website [Backpage.com] owned and maintained by Village Voice Media Holdings. J.S. allegedly was raped multiple times by adult customers who responded to the advertisements. J.S. filed a complaint alleging state law claims for damages against Backpage . . . asserting claims for negligence, outrage, sexual exploitation of children, ratification/vicarious liability, unjust enrichment, invasion of privacy, sexual assault and battery, and civil conspiracy.

Backpage moved to dismiss all claims on the grounds of the Section 230 immunity—arguing that the plaintiffs' claims were all based on Backpage having published the advertisements and that Section 230 immunizes it from state law claims based on its role as "publisher." The trial court denied the motion, and the Washington Supreme Court affirmed the denial.

As the majority put it (correctly, I think), the case

. . . turns on whether Backpage merely hosted the advertisements that featured J.S., in which case Backpage is protected by CDA immunity, or whether Backpage also helped develop the content of those advertisements, in which case Backpage is not protected by CDA immunity…. If [a website operator] passively displays content that is created entirely by third parties, then it is only a 'service provider' with respect to that content [and is protected by the CDA immunity].

But as to content that it creates itself, or is "responsible, in whole or in part" for creating or developing, the website is a content provider [and not protected by the immunity].

So the dispositive question is: Was Backpage "responsible, in whole or in part" for creating or developing the content—the advertisements that appeared on the Backpage.com Web site—on which plaintiffs' claims were based, or not?

Importantly, the case came to the court as the review of a denial of Backpage's motion to dismiss, so the court had to view plaintiff's allegations in the light most favorable to the plaintiff. That makes the dispositive question: If the plaintiff can prove all of the factual allegations in her complaint, would that support the conclusion that Backpage was "responsible, in whole or in part, for creating or developing" the content at issue (and was, therefore, outside the scope of the section 230 immunity)?

In a 6-3 decision, the court said "yes, it would support that conclusion." While acknowledging that a Web site operator "does not 'develop' content by simply maintaining neutral policies prohibiting or limiting certain content," it held that plaintiffs' allegations, if proved true, went beyond that. The court pointed to the allegations that

• (1) "Backpage.com … has intentionally developed its website to require information that allows and encourages … illegal trade to occur through its website, including the illegal trafficking of underage girls,"
• (2) "Backpage.com has developed content requirements that it knows will allow pimps and prostitutes to evade law enforcement,"
• (3) "Backpage.com knows that the foregoing content requirements are a fraud and a ruse that is aimed at helping pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false] appearance that Backpage.com does not allow sex trafficking on its website,"
• (4) "Backpage's content requirements are nothing more than a method developed by Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law enforcement for illegal sex trafficking, including the trafficking of minors for sex,"
• ( 5) "Backpage' s content requirements are specifically designed to control the nature and context of those advertisements so that pimps can continue to use Backpage.com to traffic in sex, including the trafficking of children, and so Backpage.com can continue to profit from those advertisements," and
• (6) Backpage has a "substantial role in creating the content and context of the advertisements on its website…Backpage' s advertisement posting rules were not simply neutral policies prohibiting or limiting certain content but were instead specifically designed … so that pimps can continue to use Backpage.com to traffic in sex."

Now, I suppose it does no damage to the principle underlying Section 230—that companies like Backpage should be free to publish content provided by others without fear of liability—to say that if all these allegations turn out to be true—if plaintiff can show that Backpage "specifically designed" its rules to "encourage" illegal activity, had a "substantial role in creating the content" of the advertisements, and "intentionally" designed its Web site to "require information" that encourages illegal sex trafficking—that if all those are correct, it doesn't seem unreasonable to say that Backpage has helped, at least in part, to "create and develop" the information in question.

The problem, though—and the dissenting opinion is especially persuasive, to my eyes, on this point—is that these are not "factual allegations" at all, but rather legal conclusions, and the posture of the case does not require the court to accept plaintiff's legal conclusions. There are certainly facts that could support the assertions that Backpage, say, had a "substantial role in creating the content" of the advertisements or that its Web site rules "require information … encouraging sex trafficking"—but plaintiff didn't supply any of those. Perhaps they can dig them up, during discovery—but that's not the standard the court should be applying on a motion to dismiss:

[T]he majority has accepted J.S.'s legal conclusions while failing to recognize the lack of supporting facts. But when we depart from J.S.'s legal argument and look only at factual allegations-as we must when reviewing a CR 12(b )( 6) motion-we find [only] allegations that pimps wrote and uploaded illegal content and that Backpage intentionally published it, knowing that it would lead to child sex trafficking. [But under sec. 230], that is not content development, but publication.

The only actual "facts" alleged are that …

"… pimps—not Backpage—created and uploaded the ads at issue. Nothing in Backpage's policies obligated users to flout Backpage' s express content requirements or to post unlawful content. J. S. 's allegations indicate that the pimps chose the content ultimately used in the advertisements. The actual "information" at issue consisted of the particular wording and photos that the pimps provided. Thus, holding Backpage liable would punish it for publishing third party content, and the CDA prohibits such liability.

Though I'm certainly not a disinterested observer here, I think the dissenters get this spot-on. But in any event, it probably lessens the overall impact of the decision. It's "just" a pleading case—important, to be sure, but not one that changes in any material way the underlying law that the courts apply in these cases.