BIRMINGHAM, Ala. — An Alabama federal judge today shut down MindGeek’s petition to dismiss a class action lawsuit filed by Jane Does over content posted on Pornhub that allegedly depicts instances of their human trafficking, claiming that Section 230 protections over third-party content do not apply because the company exercised “extensive control over the development of pornographic content on their websites.”
This is a highly unusual decision. Northern District of Alabama Chief Judge L. Scott Coogler, a George W. Bush appointee, sidestepped a discussion of the nuances of Section 230 by making the unprecedented blanket claim that Pornhub was a publisher and not a platform, thereby assigning liability to company for any third-party content posted on the tube site.
In the words of Judge Coogler:
- The facts of this case are unlike those cases in which neutral search tools or algorithms were misused by bad actors. See Force v. Facebook, 934 F.3d 53, 66-68 (2nd Cir. 2019) (the content provider allegations failed where they were premised on Facebook’s friend- and content-suggestion algorithms, which merely blindly connected users based on their information); Grindr LLC, 765 F. App’x at 591 (Grindr “cannot be held liable for providing . . . tools and functionality available equally to bad actors and the [platform’s] intended users”).
- Here, the allegations are that Defendants’ tools themselves function in a way to direct users to CSAM in particular, as opposed to treating CSAM the same way that lawful videos on Defendants’ websites are treated.
- Indeed, Defendants exert extensive control over the development of pornographic content on their websites. Defendants have instructed uploaders and users, down to a granular level, on how to create content, and has made these instructions a condition of use for Modelhub members and Content Partners. Plaintiffs have alleged that Defendants intend to and do direct users to the CSAM that they are seeking by using criteria indicating the illegal nature of the content.
- Ultimately, Pornhub simply cannot be likened to other kinds of ICSs that were aptly described in a similar case as “the river[s] through which internet sexual trafficking flows.”
Today, Judge Coogler decided that the Jane Does’ complaint, one of an array of lawsuits being pursued and promoted by religiously-inspired anti-porn crusading organizations like NCOSE and Exodus Cry, “alleges sufficient facts to plausibly state a claim that Defendants are providers of illegal CSAM content, not merely publishers of third party-created content. Therefore, Defendants are not entitled to CDA Section 230 immunity from Plaintiffs’ TVPRA claims.”
An Attempt to Narrow Section 230 Protections
XBIZ spoke to industry attorney Corey Silverstein, who expressed optimism that "Judge Coogler’s erroneous decision will not be the final word in this case. The 11th Circuit, if or when given the opportunity, will hopefully correct this wrong."
Regardless, Silverstein added, "this is just another example of the continued attacks and attempts to narrow the protections offered by Section 230 — the very law that has allowed the evolution of the free sharing of information on the internet. I continue to find these decisions and lawmakers' attempts, [such as the] EARN IT Act, to narrow and/or destroy Section 230 protections a direct attack on free speech.
“Further, I wish that lawmakers and the judiciary took more time to actually understand the rationale behind the creation of Section 230 to begin with and actually understand where the internet and the free flow of information and ideas would be without Section 230," he said.
“Why would any internet service provider even want to stay in that business were they liable for content that they neither created, authored or even removed?" Silverstein concluded. "As such, these anti-Section 230 folks defy logic and common sense. I would also note that many of these anti-230 lawmakers have been elected into office as a result of being able to campaign on the very online platforms that wouldn’t exist if not for Section 230.”
