Scranton, Pa

Judge Refuses to Dismiss Claims Against Pornhub for Child Pornography

Posted: October 12, 2021

On September 3, 2021, a United States District Court Judge, for the Central District of California Southern Division, refused to dismiss a majority of the claims against the parent company of Pornhub, Mindgeek USA, for child pornography and sex trafficking.

Jane Doe, was sixteen years old when her ex-boyfriend allegedly posted videos of the two of them engaging in sexual intercourse on Pornhub, without her knowledge or consent. Jane Doe filed a class action lawsuit claiming a violation of Federal Sex Trafficking laws, including the Trafficking Victims Protection Reauthorization Act (“TVPRA”), which strengthened federal trafficking laws.

In this class action lawsuit, Jane Doe alleges that Pornhub and Mindgeek, knew or should have known that the videos on their websites depicted sex trafficking. The videos were allegedly reviewed and approved by representatives from Pornhub, without an attempt to verify Jane Doe’s age. Jane Doe contends that Mindgeek and Pornhub received a financial benefit from child sex trafficking because of revenues generated by subscriptions and advertisements associated with these videos. Jane Doe further alleges that Mindgeek and Pornhub encouraged this practice by allowing video titles to include phrases like “less than 18” and “under-age,” and that they “. . . publicly acknowledged that implementing age verification would be a ‘disaster’ for Defendants’ industry, resulting in a 50% reduction in traffic to their websites.”

Mindgeek and Pornhub filed dismissal for claiming immunity under Section 230 of the Communications Decency Act (“CDA”) in 47 U.S.C. § 230(c)(1). The District Court began their analysis of Mindgeek and Pornhub’s motion to dismiss the claims against them by analyzing the applicability of the CDA to the facts presented. Under the CDA, Interactive Computer Service Providers (“ICSs”) are afforded broad immunity from liability for content posted on their websites by a third party. FOSTA, the “Allow States to Fight Online Sex Trafficking Act” codified in 47 U.S.C. § 230(e)(5)(A), provides an exception to Section 230 of the CDA. Under this exception, an ICS cannot claim immunity under Section 230 if they violated federal anti-trafficking laws, specifically those outlined in the Trafficking Victims Protection Reauthorization Act (“TVPRA”).

The FOSTA exemption requires that the underlying claim show a violation of the TVPRA. To do so, the District Court concluded that a plaintiff must allege facts showing that a defendant knowingly participated in a venture, received benefit from its participation, and knew or should have known that plaintiffs were victims of sex trafficking.

According to the District Court decision, all three requirements to show a violation of the TVPRA were met. First, Jane Doe alleged specific facts which suggested that Mindgeek and Pornhub were aware of the presence of videos containing child pornography, but failed to remove them. Therefore, a venture was created. Second, Mindgeek and Pornhub knowingly benefitted from the monetization of child pornography, including videos of Jane Doe, based on advertising revenue, fee-based services, and selling user data. Third, Jane Doe alleged sufficient facts to show Mindgeek and Pornhub had actual knowledge of the presence of child pornography on their platforms, but did not implement basic protections to prevent those postings. With the conclusion that the facts alleged were sufficient, the District Court refused to dismiss a majority of Plaintiffs claims.

Mindgeek and Pornhub defended their actions, stating that they both removed the video of Jane Doe and electronically fingerprinted the video so it could not be posted again, and maintained that the legal conclusions of the District Court are inconsistent with precedent. Mindgeek and Pornhub acknowledged that the court is required to assume all allegations are true at this stage in the litigation. Finally, Mindgeek and Pornhub asserted that “any suggestion that we allow illegal content on our platform is categorically and factually inaccurate,” also asserting they have instituted an industry leading trust and safety policy to remove any illegal material from their community.

This decision establishes strong precedent for the application of Section 230 of the CDA and FOSTA to sex trafficking and child pornography cases, applying reasoning from previous Circuit Court decisions to this area of the law for the first time. The CSE Institute is pleased to see this application of FOSTA to a trafficking and child pornography case, and that Jane Doe’s case will move forward to the next stage in litigation. The CSE Institute will provide updates as they become available.

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