Twitter Inc. is appealing to the Ninth Circuit hoping to overturn the District Court’s decision to allow a claim against the social media platform that it benefited from sex trafficking of minors, violating federal sex trafficking laws.
The plaintiffs in the case, John Doe No.1 and John Doe No. 2, allege that they were recruited and manipulated as minors to create pornographic videos through a different social media platform called Snapchat. A few years later, these videos were posted to Twitter and received over 167,000 views and 2,223 retweets. According to the plaintiffs, it was nine days before Twitter removed the videos and only did so after it was requested by an agent of Homeland Security.
Plaintiffs’ civil action arises under the Trafficking Victims Protection Reauthorization Act (“TVPRA”), which is a federal statute that criminalizes sex trafficking. The current form of legislation criminalizes the act of knowingly directing sex trafficking or benefitting from sex trafficking. This statute provides for civil remedies of victims by allowing them to bring a civil action against the perpetrator or any individual that “knowingly” benefitted from the venture that violated this law. Victims may be able to recover damages and reasonable attorney’s fees.
Plaintiffs asserted that Twitter violated “the Trafficking Victims Protection Reauthorization Act based on the allegation that ‘Twitter knew, or was in reckless disregard of the fact, that through monetization and providing, obtaining, and maintaining [child sexual abuse material] on its platform, Twitter and Twitter users received something of value for the video depicting sex acts of [the plaintiffs] as minors.’” Despite Plaintiffs asserting thirteen claims against Twitter, the District Court allowed one claim to proceed against Twitter while dismissing all others. This claim was the civil action alleging that Twitter had benefitted from Plaintiffs’ pornographic videos.
Most notably, the District Court rejected Twitter’s contention that it was immune from liability based upn the protection of Section 230 of the Communications Decency Act (“CDA”), which provides that “[n]o provider or user of an interactive computer service shall be reated a the publisher or speaker of any information provided by another information content provider.”
In its opinion, the District Court found that Twitter had participated in a venture through the showing of an “ongoing pattern of conduct amounting to a tacit agreement with the perpetrators” that allowed the perpetrators to post this pornographic material without facing repercussions from the platform. Plaintiffs argued, to which the Court agreed, that Twitter received a financial benefit from the videos of Plaintiffs as it generated advertising and attracted users. Lastly, the Court held that Twitter “knew or should have known” the venture was engaged in sex trafficking based upon the allegations that Plaintiffs alerted Twitter to the pornographic videos and provided evidence regarding their status as minors. Most notably, the District Court rejected Twitter’s contention that it was immune from liability based upon the protection of Section 230 of the Communications Decency Act (“CDA”), which provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The purpose of the CDA was to promote the development of the internet and interactive computer services, thus ensuring that it was immune from liability. In 2018, Congress amended the CDA by enacting the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) to narrow the scope of Section 230 to allow for prosecutors to combat sex trafficking of minors and adults on online platforms. FOSTA narrowed the scope of immunity by providing that Section 230 had “[n]o effect on sex trafficking law” and should not “be construed to impair or limit” civil claims brought under the TVPRA.
In its petition, Twitter contends that the District Court applied a “flawed interpretation” of Section 230 by not following the heightened requirements that the statute requires. Twitter argues that the Court should have required Plaintiffs to show that it had “actual knowledge” of the trafficking rather than the more relaxed standard of “should have known” which they applied. Twitter also acknowledges that with this relaxing of the knowing standard, the District Court joins the minority in the existing split among the District Courts. Twitter also asks the Ninth Circuit to provide clarity on what “participation in a venture” under the TVPRA means. The social media platform alleges that the Court interpreted the term incorrectly because the Plaintiff did not illustrate any relationship between Twitter and the perpetrators. This decision has the potential to pierce the veil of immunity that social media platforms and other interactive computer services have been hiding behind. It would no doubt increase litigation and hold social media platforms accountable for the actions of third parties that post on their sites. For this case, it would combat sex trafficking on online forums.
Cassandra Zietlow is a second-year law student from Raleigh, NC. She graduated from UNC in 2020 with a Bachelor of Arts degree in Public Policy and Political Science. In addition to being a staff writer for JOLT, Cassandra is a member of the Sports Moot Court Team, Vice-President of Law Students Against Sexual and Domestic Violence, and Marketing Coordinator for Women in Law.