Communications Decency Act shields Backpage from liability for violation of federal sex trafficking law

backpage

Three Jane Doe plaintiffs, who alleged they were victims of sex trafficking, filed suit against online classified ad provider Backpage.com (“Backpage”), asserting that Backpage violated the federal Trafficking Victims Protection Reauthorization Act (“TVPRA”) by structuring its website to facilitate sex trafficking and implementing rules and processes designed to actually encourage sex trafficking.

The district court dismissed the TVPRA claims for failure to state a claim, holding that the Communications Decency Act, at 47 U.S.C. §230, provided immunity from the claims. Plaintiffs sought review with the First Circuit. On appeal, the court affirmed the lower court’s dismissal.

Section 230 principally shields website operators from being “treated as the publisher or speaker” of material posted by users of the site. In this case, the court held that plaintiffs’ claims were barred because the TVPRA claims “necessarily require[d] that the defendant be treated as the publisher or speaker of content provide by another.” Since the plaintiffs were trafficked by means of the third party advertisements on Backpage, there was no harm to them but for the content of the postings.

The court rejected plaintiffs’ attempts to characterize Backpage’s actions as “an affirmative course of conduct” distinct from the exercise of the “traditional publishing or editorial functions” of a website owner. The choice of what words or phrases to be displayed on the site, the decision not to reduce misinformation by changing its policies, and the decisions in structuring its website and posting requirements, in the court’s view, were traditional publisher functions entitled to Section 230 protection.

Does v. Backpage.com, LLC, No. 15-1724 (1st Cir., March 14, 2016)

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

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