MindGeek, which operates Pornhub and other sex sites online, can face a lawsuit from a plaintiff who claims her ex-boyfriend posted videos of them having sex when she was underage, a federal district judge in California has ruled.
The ruling found that, despite a shield in federal law that generally protects websites from liability over what users post, the suit could proceed thanks to 2018 amendments, known as FOSTA–SESTA, that sought to curb online sex trafficking. The decision quotes extensively from an August opinion allowing a similar lawsuit to proceed against Twitter, one of several recent moves that increases pressure on both the online adult entertainment industry and also on a legal shield that's prized by all kinds of internet companies.
The anonymous plaintiff, who is seeking to create a class action, alleged MindGeek violated laws pertaining to, among other issues, sex trafficking and receiving child exploitation materials because of videos that made it onto the sites. The plaintiff also alleged that MindGeek's pages "suggest and promote search terms to their users, such as 'young girls,' 'middle school girls,'" and others, according to Judge Cormac Carney.
MindGeek, which owns several massively popular websites that have become top targets of anti-porn and anti-trafficking activists alike, argued that the law only applies to actual awareness of both the trafficking and the benefit, as well as overt acts to further trafficking.
In his ruling, Carney found that the shield for websites, known as Section 230 of the Communications Decency Act, did not apply because of the FOSTA–SESTA legislation. Those amendments, which former President Donald Trump signed into law in 2018, allow lawsuits against sites that are benefiting from sex trafficking if the site operators should have known plaintiffs were victims of the practice, the judge ruled.
In evaluating a motion to dismiss, judges don't rule on guilt but whether plaintiffs' claims, evaluated in the best light, meet the legal standards to proceed. A spokesperson for MindGeek did not provide comment in response to a request. MindGeek has previously touted its "zero tolerance" on illegal content.
In the ruling, Carney also found MindGeek sites forfeited their Sec. 230 protections, which focus on third-party content, through "materially" contributing to the creation of allegedly offending videos. The judge cited claims that the sites "categorize their videos using coded language for child pornography" and use technology to anonymize web traffic and message privately to evade law enforcement, among others.
Sec. 230 draws a distinction between content that websites, apps or other online platforms simply host and content that they are "responsible, in whole or in part, for the creation or development of." Yet courts have often found that the law, which was designed to protect free speech online while encouraging the elimination of the most objectionable posts, still protects platforms when they engage in a wide variety of content curation and moderation. Those activities form the basis of many social media sites.
Pressure is increasing on those models, however, particularly if they touch on controversial content. MindGeek itself faces other lawsuits, and in December, Pornhub specifically was the subject of a blockbuster New York Times op-ed that alleged it was profiting from videos of exploitation. The site changed many policies in response, including banning videos from unverified accounts and launching a new biometric verification system, but credit card companies cut ties with the company and at least one lawmaker has called for a Justice Department investigation of the site.
In August, OnlyFans, which allows creators to post their own explicit videos, also said it would be prohibiting a large swath of sexual content, citing the necessity "to secure banking and payment services." The company had reportedly struggled to find investors, and it was the subject of a bipartisan letter from more than 100 lawmakers urging a Justice Department probe. Still, amid outcry from sex workers, it reversed the adult content ban days later.
Another federal judge in California recently ruled Twitter can face a lawsuit from two boys who allege the platform did not immediately remove a sexual video of them made under duress while they were minors when one of them informed Twitter about it. The judge cited that ruling in his decision against MindGeek.
Free speech advocates, adult creators and tech firms also argue that anti-porn activists are using a small number of horrific cases and nebulous terms like "benefit" and "venture" in anti-trafficking law as part of a push to make legal porn economically impossible. The anti-porn and anti-trafficking activists are also seeking to pressure conversations over encrypted platforms, free-speech advocates say.
Lawsuits are just one point of pressure on the internet porn apparatus. Anti-trafficking groups have sought to push the advantage they gained with the passage of FOSTA–SESTA by helping to file suits, such as the one against Twitter. The groups also aim to amp up the public relations headaches that sex sites can cause to credit cards and other internet infrastructure providers, which have sometimes chosen to stop working with adult content providers as a result.
In the quarter-century since its passage, Sec. 230 has essentially provided the legal foundation of the modern internet. Court rulings emphasized free speech and sites' discretion to balance their commercial interests with their moderation goals, even when there were few of the latter.
Now, however, companies such as Twitter, Snap, Craigslist and others have recently lost in court when trying to have claims against them dismissed under the provision. Although some of the rulings related to sexual content and sprang from FOSTA, others, such as the Snap lawsuit, related to design features. Conservative Supreme Court Justice Clarence Thomas, who frequently alleges a bias against right-wing voices by tech companies, even wrote last year that the high court should take up the law for the first time and rein it in.
