Section 230 Setback For Backpage.com

Section 230 of the Communications Decency Act (CDA) shields websites for liability for third party content with limited exceptions. This is seen by many to be the equivalent of the Magna Carta for free and unfettered debate on the internet.

Backpage.com has been targeted for years for its perceived role in promoting sex trafficking through its classified ad service. In May 2015, a Massachusetts federal judge invoked the CDA to dismiss a sex trafficking claim against Backpage.

To avoid any misunderstanding, let me make it clear that the court is not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of children as anything other than an abhorrent evil. Finally, the court is not naïve – I am fully aware that sex traffickers and other purveyors of illegal wares ranging from drugs to pornography exploit the vulnerabilities of the Internet as a marketing tool. Whether one agrees with its stated policy or not (a policy driven not simply by economic concerns, but also by technological and constitutional considerations), Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.

Jane Doe v. Backpages.com, LLC, Case No.1:14-cv-13870-RGS (D. Mass. May 15, 2015)

In J.S. v Village Voice Media Holdings, LLC (Wash. Sept. 3, 2015), the Washington Supreme Court affirmed the rejection of a motion to dismiss under the CDA against Backpage finding that the allegations “if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content.” The thrust of the allegations was that Backpage’s website and content guidelines

were not simply neutral policies prohibiting or limiting certain content but were instead “specifically designed … so that pimps can continue to use Backpage.com to traffic in sex.”

The dissent argues, however, that the majority is confusing content guidelines with content creation.

But when we depart from J.S.’s legal argument and look only at factual allegations-as we must when reviewing a CR 12(b )( 6) motion-we find allegations that pimps wrote and uploaded illegal content and that Backpage intentionally published it, knowing that it would lead to child sex trafficking. . . . Congress has said that that is not content development, but publication.