SAN FRANCISCO, Calif. – In a ruling that reversed in part and upheld in part a district court’s ruling in Doe v. Twitter, a lawsuit backed by the National Center on Sexual Exploitation (NCOSE) alleging that the massive social media platform is liable for various sex trafficking offenses, the U.S. Court of Appeals for the Ninth Circuit dismissed two more claims from the suit, while upholding the lower court’s dismissal of another count.
In the lawsuit, two John Doe plaintiffs alleged that when they were 13 years-old, they were “solicited and recruited for sex trafficking and manipulated into providing to a third-party sex trafficker pornographic videos of themselves through the social media platform Snapchat,” as the district court wrote in a summary of the allegations and facts of the case.
“A few years later, when Plaintiffs were still in high school, links to the Videos were posted on Twitter,” the court’s summary continues. “Plaintiffs allege that when they learned of the posts, they informed law enforcement and urgently requested that Twitter remove them but Twitter initially refused to do so, allowing the posts to remain on Twitter, where they accrued more than 167,000 views and 2,223 retweets. According to Plaintiffs, it wasn’t until the mother of one of the boys contacted an agent of the Department of Homeland Security, who initiated contact with Twitter and requested the removal of the material, that Twitter finally took down the posts, nine days later.”
The district court issued a mixed ruling on motions to dismiss made by Twitter, dismissing the amended complaint’s first and fourth counts – which allege violations of the Trafficking Victims Protection Reauthorization Act (TVPRA) and seek “civil remedies for personal injuries related to sex trafficking and receipt and distribution of child pornography”, respectively – and declining to dismiss the complaint’s second count, which alleges that Twitter is liable for “benefiting from a sex trafficking venture” in violation of the TVPRA.
Twitter file an appeal to the district court’s upholding of the second count, while the plaintiffs filed a cross-appeal, urging the appellate court to reverse the dismissal of the other counts. The Ninth Circuit’s ruling issued yesterday reversed the district court’s upholding of the second count, while affirming the court’s dismissal of counts one and four.
In their ruling, the Ninth Circuit panel noted that in its interlocutory appeal as to the second count of the complaint, “Twitter sought certification of the following two questions: (1) whether the immunity carve-out in Section 230(e)(5)(A) requires that a plaintiff plead a violation of Section 1591; and (2) whether ‘participation in a venture’ under Section 1591(a)(2) requires that a defendant have a ‘continuous business relationship’ with the traffickers in the form of business dealings or a monetary relationship.”
“With respect to Count 2, the legal standard applicable to that issue has now been decided by Jane Does 1–6 v. Reddit,” the appellate court wrote. “Reddit answered the first certified question in the affirmative: ‘[F]or a plaintiff to invoke FOSTA’s immunity exception, she must plausibly allege that the website’s own conduct violated section 1591.’” (Internal citations omitted.)
The court continued that the Reddit case also “answered the second question in the negative: ‘In a sex trafficking beneficiary suit against a defendant-website, the most important component is the defendant website’s own conduct—its ‘participation in the venture’… A complaint against a website that merely alleges trafficking by the website’s users—without the participation of the website—would not survive.’ The term ‘[p]articipation in a venture,’ in turn, is defined as ‘knowingly assisting, supporting, or facilitating’ sex trafficking activities…. Accordingly, establishing criminal liability requires that a defendant knowingly benefit from knowingly participating in child sex trafficking.’ Reddit therefore requires a more active degree of ‘participation in the venture’ than a ‘continuous business relationship’ between a platform and its users. Because these questions certified for interlocutory appeal are controlled by Reddit, the district court’s contrary holding is reversed.”
As for the complaint’s first count, the appellate court found that the district court “correctly ruled that Plaintiffs failed to state a claim for direct sex trafficking liability under the TVPRA,” noting that the statute “creates a direct liability claim for ‘[w]hoever knowingly… recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person’” – and that the plaintiff’s complaint fails to establish that Twitter did any of those things in this case.
“Because Plaintiffs nowhere allege in their complaint that Twitter ‘provided,’ ‘obtained,’ or ‘maintained’ a person, the district court correctly concluded that Twitter’s alleged conduct relates only to CSAM depicting Plaintiffs, not to their persons (as required to implicate a direct violation of the TVPRA),” the appellate panel wrote.
With respect to the lawsuit’s fourth count, the Ninth Circuit panel found the district court had “correctly ruled that section 230 precluded Plaintiffs from stating a viable claim for possession and distribution of child pornography” against Twitter.
“Because the complaint targets ‘activity that can be boiled down to deciding whether to exclude material that third parties seek to post online,’ such activity ‘is perforce immune under section 230,’” the court wrote, citing Fair Housing Council of San Fernando Valley v. Roommates.Com.
In closing its ruling, the appellate court said that while the district court’s order is “affirmed as to Counts 1 and 4”, because the lower court’s ruling regarding the second count is “contrary to our court’s Reddit decision,” the district court’s order is reversed with respect to that count and remanded “further proceedings to be conducted in a manner consistent with this court’s Reddit decision.”
