Two years ago we, along with co-counsel, Erik Bauer, filed suit in Pierce County Superior Court against a large newspaper publisher, Village Voice Media, on behalf of three underage girls who were trafficked for sex on the company’s “online publication,” www.backpage.com.  Two of our clients had just finished seventh grade when they ran away from home and were found by sex traffickers. In exchange for food and shelter, the young girls were required to have sex with hundreds of men.

It is estimated that more than 100,000 children are trafficked for sex in the U.S. each year.  Like many other enterprises, modern day sex trafficking has evolved onto the internet.  In our complaint, we allege that Village Voice Media made over $20 million per year selling “advertising space” for sex trafficking on www.backpage.com.

The business is rather straightforward.  Village Voice Media and its subsidiaries created an online marketplace—www.backpage.com—where traffickers could post sex advertisements and solicit customers in the website’s “escorts” section.  They then provided various “posting rules” and “content requirements,” which we allege they created in order to instruct sex traffickers how to post effective sex advertisements that maintain some form of plausible deniability and cover. Village Voice Media has claimed in pleadings that these “posting rules” and “content requirements” were part of a system to prevent sex trafficking, but even a cursory review of the “escorts” section showed hundreds, if not thousands, of advertisements in just the Seattle/Tacoma area that were blatantly for sex.

Village Voice Media did not require a person to provide photo identification before they were advertised for sex on backpage.com, even though the company required such proof for its offline publications, such as the Seattle Weekly, thus allowing minors to be easily

In early 2013, Village Voice Media filed a CR 12(b)(6) motion and claimed it was immune from suit under a federal statute, 42 U.S.C. § 230(c)(1).  Passed in the mid-1990s, this federal law was passed by Congress to promote the growth of the internet by providing immunity for websites for content that they did not help create or develop.  Typically, the law immunizes websites from suits arising out of (1) content provided by third parties, which the website did not help create or develop, or (2) good faith efforts taken by the website to edit or remove offensive content.

The typical website that qualifies for immunity is an online messaging board where users post comments and respond to comments posted by others.  These websites are generally considered “passive conduits” of online information, so they are immunity from suit.  This is why it can be very difficult, if not impossible, to get these websites to remove content, even when you can show that the content is defamatory or inaccurate.

However, in 2008, the Ninth Circuit issued a landmark decision regarding this federal law, Fair Housing Council of San Fernando Valley v. Roommates.com LLC, 521 F.3d 1157 (9th Cir. 2008), where the Court took a much broader view of what it means to “create” or “develop” content online.  In an en banc decision, the Court rejected www.roommates.com’s reliance on the federal law for immunity because the website had taken various steps to elicit unlawful content from its users through “drop down” menus which contained preferences that violated federal housing laws.  For example, someone posting an advertisement for an apartment in San Francisco was required to choose whether the apartment was open to people of a particular race, ethnicity, or sexual orientation.  Accordingly, the Ninth Circuit concluded that the owner of roommates.com was a “co-developer” of the unlawful (i.e. discriminatory) content posted by its users.

The Court stressed that if a website is responsible “in whole or in part” for the “creation” or “development” of unlawful content, then it is not entitled to immunity.  Importantly, the Court held that “a website helps to ‘develop’ unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.”  It also warned websites that they can be held liable for “encouraging” unlawful content:  “If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.”

In our cases, we relied heavily on the Ninth Circuit’s analysis and asserted that Village Voice Media and the other defendants could not claim immunity under the federal law because they created an online marketplace for sex trafficking and then used their “posting rules” and “content requirements” to help sex traffickers develop their advertisements.  The trial court agreed with our analysis and concluded that we should be allowed to conduct discovery regarding these issues.

However, understanding that appeal was inevitable on the federal immunity issue, she certified the case for immediate interlocutory review, which was granted by the Court of Appeals.  In October 2014, we argued the case before the Washington State Supreme Court and are now awaiting its decision.

While we believe our clients will be successful in the civil courts, it is equally important that Congress update 42 U.S.C. § 230(c)(1) so that websites like backpage.com can no longer try to use it as a shield.  We encourage you to write to Congress and urge them to do so.