Protocol | Policy

A Pornhub sex trafficking lawsuit is the latest problem for the adult industry

A judge ruled that the operator of Pornhub can face a lawsuit over alleged sex trafficking. It's just the latest arrow aimed at the industry.

Brown wooden gavel on marble

Websites are finding themselves losing in court, especially if they deal with sexual content.

Photo: Tingey Injury Law Firm/Unsplash

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.

Protocol | Enterprise

How Cloudflare thinks it can become ‘the fourth major public cloud’

With its new low-cost R2 cloud storage service, Cloudflare is jumping into direct competition with the AWS service that launched the cloud computing revolution.

Cloudflare will not charge data-egress fees for customers using R2, taking direct aim at the fees AWS charges developers to move data out of its widely popular S3 storage service.

Photo: Martina Albertazzi/Bloomberg via Getty Images

Cloudflare is ready to launch a new cloud object storage service that promises to be cheaper than the established alternatives, a step the company believes will catapult it into direct competition with AWS and other cloud providers.

The service will be called R2 — "one less than S3," quipped Cloudflare CEO Matthew Prince in an interview with Protocol ahead of Cloudflare's announcement Tuesday morning. Cloudflare will not charge data-egress fees for customers using R2, taking direct aim at the fees AWS charges developers to move data out of its widely popular S3 storage service.

Keep Reading Show less
Tom Krazit

Tom Krazit ( @tomkrazit) is Protocol's enterprise editor, covering cloud computing and enterprise technology out of the Pacific Northwest. He has written and edited stories about the technology industry for almost two decades for publications such as IDG, CNET, paidContent, and GeekWire, and served as executive editor of Gigaom and Structure.

The pandemic won't be over until the economy recovers. While cities, states and regions across the U.S. are grappling with new variants, shifting mask policies and other factors that directly impact businesses large and small, it is nevertheless time for brands and enterprises to jumpstart COVID-19 recovery strategies.

Data will undoubtedly be critical to such strategies, but there is one type of data in particular that is poised to yield greater impact than ever in the COVID-19 Recovery Era: location data.

Keep Reading Show less
Michele Morelli, Foursquare
As SVP of Marketing, Michele is responsible for overseeing the brand strategy, communications, and product and performance marketing of Foursquare’s apps and enterprise products. Prior to joining Foursquare, Michele held several senior leadership positions with wide-ranging responsibilities at AOL, Toluna, Citibank and Yahoo!.
Power

VR pioneer The Void is plotting a comeback

Assets of the location-based VR startup have been acquired by a former investor, who plans a relaunch with key former team members.

The Void's New York outpost closed during the pandemic. Now, the company is planning a comeback under new ownership.

Photo: The Void

Location-based VR pioneer The Void may rise from the ashes next year: A former investor has acquired key assets of the defunct startup and is now looking to relaunch it with key team members, Protocol has learned. The company is said to be actively fundraising, and is getting ready to start hiring additional talent soon.

The Void's patents and trademarks were recently acquired by Hyper Reality Partners, a company headed by former OneWeb CEO Adrian Steckel, who also used to be an investor in and board member of The Void. Hyper Reality Partners is actively fundraising for a relaunch of the VR startup, and is said to have raised as much as $20 million already, according to an industry insider.

Keep Reading Show less
Janko Roettgers

Janko Roettgers (@jank0) is a senior reporter at Protocol, reporting on the shifting power dynamics between tech, media, and entertainment, including the impact of new technologies. Previously, Janko was Variety's first-ever technology writer in San Francisco, where he covered big tech and emerging technologies. He has reported for Gigaom, Frankfurter Rundschau, Berliner Zeitung, and ORF, among others. He has written three books on consumer cord-cutting and online music and co-edited an anthology on internet subcultures. He lives with his family in Oakland.

Protocol | Workplace

A new McKinsey study shows that women do more emotional labor at work

The 2021 Women in the Workplace report from McKinsey found that women are far more likely than men to help their teams manage time and work-life balance and provide emotional support.

Senior leaders who identify as women were 60% more likely to provide emotional support to their teams and 26% more likely to help team members navigate work/life challenges, according to the report.

Photo: Luis Alvarez via Getty Images

Over the last year, emotional support, time management skills and work-life balance have become drastically more important and difficult in the workplace — and women leaders were far more likely than men to step in and do that work for their teams, according to the latest iteration of McKinsey and LeanIn.org's annual Women in the Workplace report.

Senior leaders who identify as women were 60% more likely to provide emotional support to their teams, 24% more likely to ensure their teams' workload is manageable and 26% more likely to help team members navigate work/life challenges, according to the report. In addition, about one in five women senior leaders spend a substantial amount of time on DEI work that is not central to their job, compared to less than one in 10 male senior leaders.

Keep Reading Show less
Anna Kramer

Anna Kramer is a reporter at Protocol (Twitter: @ anna_c_kramer, email: akramer@protocol.com), where she writes about labor and workplace issues. Prior to joining the team, she covered tech and small business for the San Francisco Chronicle and privacy for Bloomberg Law. She is a recent graduate of Brown University, where she studied International Relations and Arabic and wrote her senior thesis about surveillance tools and technological development in the Middle East.

Amazon needs New World’s launch to be a success

New World arrives Tuesday. Whether it flops could determine the future of Amazon Games.

New World launches on Tuesday, after four delays. It could be Amazon's first big hit.

Image: Amazon

Amazon's New World launches on Tuesday, marking the end of a long and bumpy road to release day for the company's most pivotal video game release to date. There's a lot riding on New World, a massively multiplayer online game in the vein of iconic successes like Blizzard's long-running World of Warcraft and Square Enix's immensely popular Final Fantasy XIV.

If the game succeeds, New World will mark a rare success for a technology company in the gaming space. With the exception of Microsoft, which entered the console game industry nearly two decades ago, tech firms have tried time and again to use their engineering talent and resources to crack the code behind making successful video games. Almost every attempt has failed, but Amazon is the closest to having a hit on its hands. If it flops, we could see Amazon's gaming ambitions go the way of Google's.

Keep Reading Show less
Nick Statt
Nick Statt is Protocol's video game reporter. Prior to joining Protocol, he was news editor at The Verge covering the gaming industry, mobile apps and antitrust out of San Francisco, in addition to managing coverage of Silicon Valley tech giants and startups. He now resides in Rochester, New York, home of the garbage plate and, completely coincidentally, the World Video Game Hall of Fame. He can be reached at nstatt@protocol.com.
Latest Stories