Backpage Gets Victory in Online Sex Ad Case; Another Pending

Backpage.com scored a victory last week when a federal court dismissed the case brought by three women in Massachusetts, saying that the online classified advertiser wasn't responsible for their appearance in prostitution advertisements posted by third parties. It faces a similar challenge in Washington state, and the company's troubles with Congress grew when the Senate unanimously held the company and its CEO in contempt for ignoring subpoenas to appear before an investigations subcommittee (see 1603170042). Some experts said Section 230 of the Communications Decency Act is doing what CDA was designed to do: protect website operators from lawsuits arising out of third-party content.

In the Massachusetts case, ads for three young women -- who were minors at the time and all identified as "Jane Doe" -- were posted in the "Escorts" section of Backpage.com, the 1st U.S. Circuit Court of Appeals said in its ruling. The three women alleged the company "with an eye to maximizing its profits, engaged in a course of conduct designed to facilitate sex traffickers' efforts to advertise their victims on the website. This strategy, the appellants say, led to their victimization," said the court document. Each plaintiff alleged they were raped either on "numerous occasions" or from 900 to more than 1,000 times over varying periods, the document said.

The three women sued the company in October 2014. They alleged Backpage.com engaged in sex trafficking of minors in violation of the federal Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) and the Massachusetts version of the statute. The three also sued under a Massachusetts consumer protection law against unfair or deceptive acts or practices in any trade or commerce as well as they alleged "abridgements of intellectual property rights."

Plaintiffs' made a "persuasive case" that Backpage made sex trafficking easier by tailoring its website, the 1st Circuit said in its ruling. But "Congress did not sound an uncertain trumpet when it enacted the CDA, and it chose to grant broad protections to internet publishers. Showing that a website operates through a meretricious business model is not enough to strip away those protections," the court added. The 1st Circuit said legislation is the "remedy," not litigation.

The most powerful part of the decision was "the discussion about how it was irrelevant that Backpage structured its website in a way that could have facilitated online prostitution ads," said Santa Clara University law professor Eric Goldman in an interview Monday. "The court didn’t want to hear the details about how Backpage ran its operations. Any discussion about Backpage’s operations was a discussion about Backpage’s editorial choices and those are off limits per Section 230." Goldman, the Electronic Frontier Foundation and the Center for Democracy and Technology filed an amicus brief in the case.

While the TVPRA would have made anyone liable for "knowingly" benefiting from a sex trafficking venture, which the women alleged that Backpage did, Harvard Law Professor Noah Feldman wrote in an opinion piece in Bloomberg View Wednesday that "the website can't be held responsible for content posted by a third party. That goes a long way to protect Backpage from liability for ads posted on its site." He also said it's "highly unlikely" the Supreme Court would review the ruling because it would be a plaintiff's application "to correct what they consider the error of the First Circuit; the Supreme Court doesn't like to do error correction."

The National Center for Missing and Exploited Children was disappointed the court spent all its time on CDA and "didn't really address" the TVPRA, said General Counsel Yiota Souras in an interview Friday. The 1st Circuit "should have had far more reaching analysis," she said. "This is a kind of statute that could provide a lot of avenues for victims in multiple kinds of trafficking situations to seek relief." She also said a Washington state case (see 1012280055) is similar to the one in Massachusetts, and Backpage has moved to dismiss that case.

But Santa Clara's Goldman called that case, which is in discovery in Washington Superior Court for Pierce County, an "outlier." He said the Washington Supreme Court didn't say Backpage couldn't qualify for Section 230, but that it couldn't make that determination on a motion to dismiss. He said prosecutors and others need to figure out the problem they want to solve: whether it's online prostitution or, at a minimum, underage sex trafficking, which could lead to different solutions. "Online advertising is just an input into the harm, it's not the harm," he said. "Now one of the obvious solutions, and I feel silly for saying this because we’ve been saying this for a decade, is that online prostitution ads are the road map to finding the bad people," he said. "And so … suppressing the ads and making them harder to find will only make it harder to find the bad people."

Goldman said Section 230 has been critical for the online community and negative implications could be "quite profound." He said many plaintiffs "are chomping at the bit to look for ways to hold online intermediaries liable for what their users are doing" and even "the slightest crack in Section 230 … plaintiffs just pour right into, like water spilling over the dam." But Souras said reports over the last six years about online trafficking have exploded. She said there's a lot of activity on Capitol Hill to address services for victims, awareness, training and other issues. But she said it's a difficult issue to even tweak CDA so there aren't unintended consequences.