Big Win For Free Speech Online In Backpage Lawsuit (Forbes Cross-Post) - Technology & Marketing Law Blog (original) (raw)

Regulators and plaintiffs have been trying to eradicate online prostitution ads for a decade. These efforts have been partially hampered by 47 U.S.C. 230 (Section 230), a law Congress enacted in 1996 to protect websites from liability for third party content. Intuitively, it might seem like Section 230 should yield to efforts to suppress online prostitution and sex trafficking. However, Section 230 protects vitally important free speech interests that deserve careful consideration as well. In a direct collision between these two important social interests, a federal appellate court gave online classified ads published Backpage.com an important Section 230 win that will benefit free speech online.

The Ruling

Section 230. Backpage.com has been sued many times for running online prostitution ads. In this lawsuit, three young female victims of human trafficking sued Backpage.com for running online prostitution ads featuring them. Their primary claim was based on the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which applies to anyone who “knowingly benefits, financially or by receiving anything of value from” human trafficking (18 U.S.C. 1595(a)).

As a for-profit publisher that accepted online prostitution ads, Backpage.com seemingly benefited financially from the ad revenue. However, this conclusion would hold Backpage.com responsible for publishing third party material–exactly what Section 230 prevents. (Section 230 jurisprudence doesn’t distinguish between ads and editorial content). So it’s instantly apparent that Section 230 ought to preempt a TVPRA lawsuit predicated on third party ads.

The plaintiffs tried a familiar tactic to work around this issue. They argued they were suing Backpage.com for its conduct, not its publication of third party content. The plaintiffs specifically pointed to Backpage.com’s product configuration choices that seemed designed to help online prostitution advertisers, including its “rules about which terms are permitted or not permitted in a posting, the lack of controls on the display of phone numbers, the option to anonymize e-mail addresses, the stripping of metadata from photographs uploaded to the website, the website’s reaction after a forbidden term is entered into an advertisement, and Backpage’s acceptance of anonymous payments.” Citing a defense-favorable First Circuit opinion from 2007 (Universal Communication v. Lycos), the court responded that “features that are part and parcel of the overall design and operation of the website” reflect Backpage.com’s choices as publishers of the third party ads–and Section 230 explicitly protects decisions about how to publish third party material.

The court summarizes Section 230’s applicability:

claims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by section 230(c)(1). This holding is consistent with, and reaffirms, the principle that a website operator’s decisions in structuring its website and posting requirements are publisher functions entitled to section 230(c)(1) protection….the appellants’ claims under the TVPRA necessarily treat Backpage as the publisher or speaker of content supplied by third parties

To salvage their claims, the plaintiffs noted that Section 230(e)(1) excludes the enforcement of federal criminal laws, so it should exclude their civil TVPRA claim. The court rejected this argument because Section 230(e)(1) only excludes federal criminal prosecutions, not civil lawsuits predicated on federal criminal law (citing Doe v. Bates; other appropriate citations could have included Obado v. Magedson, MA v. Village Voice, Dart v. Craigslist, GoDaddy v. Toups and Hinton v. Amazon).

Unfair Competition. The plaintiffs claimed that Backpage.com made misrepresentations to regulators about its efforts to combat sex trafficking. The court responded that the plaintiffs can’t show that the alleged misrepresentations caused their injuries. (The court uses especially strong language about this claim, saying the plaintiffs’ “causal chain is shot through with conjecture: it pyramids speculative inference upon speculative inference”; it relies on “rampant guesswork” and “is forged entirely out of surmise”).

Section 230 excludes intellectual property claims, so Section 230 theoretically does not apply to the remaining two claims. The claims nevertheless failed because the court recognized them as attempts to end-run Section 230.

Publicity Rights. Publicity rights prohibit the unauthorized depiction of a person in an advertisement. Nominally, the doctrine applies to victims depicted in online prostitution ads. However, the court says Backpage.com didn’t “appropriate” the victims’ images for advertising purposes because Backpage.com, as the publisher and not the advertiser, didn’t directly derive financial benefits from the depiction (the advertisers did).

Note: the court applied the publicity rights laws of Massachusetts and Rhode Island. California’s publicity rights statute explicitly restricts publishers’ liability for third party ads unless the publisher “had knowledge of the unauthorized use.” California Civil Code 3344(f).

Copyright. After the ad was published, one of the victims registered the copyright to the photo depicting her. (The court doesn’t explain how she became the photo’s copyright owner; either it was a selfie or she acquired the copyrights from the photographer). However, the court can’t find any damages attributable to the alleged copyright infringement. Nothing indicated that the ad publication diminished the value of the photograph’s copyright; and the court can’t see any link between Backpage.com’s purported profits from the ad and the victim’s copyright interest.

Final Words. The court concluded its discussion:

The appellants’ core argument is that Backpage has tailored its website to make sex trafficking easier. Aided by the amici, the appellants have made a persuasive case for that proposition. 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.

Why This Ruling Is Important

Section 230 plays a vital role for all user-generated content websites, and this is a powerful ruling for Section 230. I expect it will be influential in future Section 230 cases because:

* Strong plaintiff group. The plaintiffs were victims of a heinous crime, and they were supported by a stellar cast of amici, including the Massachusetts attorney general, seven city attorneys, and several sex trafficking victims’ advocacy groups. Courts often try to find some legal relief for sympathetic litigants, and future challenges to Section 230 are unlikely to have such a strong group of plaintiffs.

* Published appellate ruling. This ruling is the law of the First Circuit, including Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. Courts in other locations can cite it as persuasive precedent.

* Construes Section 230 broadly. Like many of the other appellate court rulings on Section 230, this opinion expressly says (several times) that Section 230 should be construed or interpreted broadly. Defendants routinely quote these types of contextualization statements, and they often prove influential to other judges.

* Section 230 and “facilitating illegal conduct.” The opinion decisively rejects one of the most common arguments to overcome Section 230: that plaintiffs aren’t suing the defendant for publishing third party content, but instead are suing for facilitating illegal conduct. This opinion does a brilliant job showing how those arguments are really the same. That key holding should help defendants in numerous other cases implicating Section 230. For example, Fields v. Twitter seeks to hold Twitter liable for ISIS’s killing of an American because Twitter provides “material support” to a terrorist organization. But Twitter’s only “material support” to ISIS is allowing ISIS to publish tweets, so Section 230 should preempt any allegation that Twitter “materially supports” ISIS.

* Section 230 and product configurations. The opinions treats an online publisher’s product configuration choices as editorial choices. This implicitly rejects, or at least undermines, murky opinions like the Ninth Circuit’s Roommates.com opinion, which cited several of Roommates.com’s product design choices as reasons to reject Section 230 immunity. I expect this opinion will become defendants’ standard citation to rebut future plaintiff citations to Roommates.com.

* Section 230 and civil claims predicated on federal crimes. Although other cases have held that Section 230 preempts civil claims predicated on federal crimes, I believe this is the first published appellate opinion reaching that conclusion, so it will become the standard citation for this proposition.

* No IP workarounds to Section 230. Because Section 230 doesn’t cover IP claims, we’re seeing plaintiffs try a variety of IP claims to work around Section 230. The court recognized the plaintiffs’ workaround goal and refused to assist it. In particular, I’ve previously blogged about plaintiffs purchasing copyrights to create an IP claim that would be otherwise foreclosed by Section 230. Indeed, the First Circuit may revisit that issue in the pending Small Justice v. Xcentric appeal. This opinion further reduces the chances of Small Justice’s success on appeal.

Finally, I also note that the opinion’s author, Judge Selya, is a highly cited judge, so his track record predicts this opinion will get additional attention.

Conclusion

This ruling reinforces the power of Section 230, but it hardly ends the decade-long battle over online prostitution ads. A few years ago, several states enacted laws targeting the publication of online prostitution ads. Those lawsuits failed due, in part, to Section 230; but those failures spurred many state attorneys general to ask Congress to amend Section 230 so the AGs could crack down against online prostitution ads. Congress responded to that request with deafening silence, but this ruling could easily motivate state AGs and other state and local officials to try again.

Meanwhile, in a similar case against Backpage.com, the Washington Supreme Court unexpectedly held that Backpage.com didn’t qualify for Section 230 (at least, not yet). This ruling’s discussion about product configuration squarely undermines the Washington court’s concerns about Backpage.com’s “non-neutral policies,” but I expect more courtroom fights over these issues before we see any definitive resolution.

Case citation: Jane Doe No. 1 v. Backpage.com, LLC, 2016 WL 963848 (1st Cir. March 14, 2016). I participated in an amicus brief to the First Circuit, along with the EFF and CDT, in support of Backpage.com.