Facebook filed a petition for mandamus relief before the Supreme Court of Texas directing the dismissal of three separate lawsuits against it based on human trafficking allegations. The three plaintiffs allegedly became sex trafficking victims after meeting their alleged traffickers through social media platforms owned by Facebook (Facebook and Instagram).
Specifically, according to the first lawsuit, in 2015, the Plaintiff, who was fifteen years old at that time, was approached by her alleged trafficker on Facebook. The latter contacted the Plaintiff using Facebook’s messaging system and convinced her to take her pictures by promising to help her pursue a modelling career. Her pictures were then posted to the website ‘Backpage’ advertising sexual services. As a consequence, Plaintiff was “raped, beaten and forced into further sex trafficking.”
In 2012, the second Plaintiff, who was fourteen years old, was approached by her alleged trafficker via Instagram. The alleged trafficker, by promising her love and a better life, lured her into sex trafficking through social media. In particular, the alleged trafficker used Instagram to arrange “dates’” in exchange for money, during which, the alleged victim was raped. The victim’s mother had reported the said sex trafficking activities to Facebook, which never responded.
According to the third and last lawsuit, the third plaintiff was also approached by her alleged trafficker on Instagram. After two years, during which the alleged trafficker and the plaintiff were in constant communication, the alleged trafficker convinced her to meet in person, took her to a motel, took her pictures and posted them on ‘Backpage’ as an advertisement for prostitution that resulted in multiple rapes.
In all three lawsuits, Facebook contented that the relevant claims should be dismissed as barred by section 230. The motions were denied by the district courts. As a result, Facebook sought mandamus relief in the court of Appeals, where it was denied. Therefore, Facebook petitioned the Supreme Court of Texas for writs of mandamus.
Supreme Court of Texas
Facebook filed a writ of mandamus before the Supreme Court of Texas directing the dismissal of separate lawsuits against it based on human trafficking allegations. The plaintiffs asserted several identical claims, i.e., negligence claims based notably on Facebook’s alleged failure to prevent human trafficking through its platforms, as well as claims under a Texas Statute that allows for a civil cause of action against those who intentionally or knowingly benefit from participation in a sex-trafficking venture.
Facebook submitted that the plaintiffs’ claims should be dismissed, since Section 230 of the federal “Communications Decency Act” (“CDA”) provides that interactive computer services shall not be treated as the publishers or speakers of any information provided by another information content provider.
The Supreme Court proceeded to an analysis of Section 230 of the Federal Statute (“CDA”) in order to examine the plaintiffs’ claim that section 230 affords protection from ‘publisher’ but not ‘distributor’ liability, and thus, it allows for traditional distributor liability to be imposed on Facebook. With regard to this matter, the Court rejected plaintiffs’ narrow view and adopted the prevailing judicial understanding of section 230 by holding that ‘publisher’ liability should not be distinguished from ‘distributor’ liability.
The Court subsequently proceeded to an examination of the Plaintiffs’ common-law claims, i.e., negligence, gross-negligence, negligent-undertaking, and products-liability claims. The Court noted that, under the prevailing view of section 230 – also adopted by the Supreme Court of Texas itself -, these claims should be dismissed, since they treat Facebook “as the publisher or speaker of third-party communication.”
Lastly, the Court examined the Plaintiffs’ statutory claims under a Texas Statute that creates a civil cause of action against anyone “who intentionally or knowingly benefits from participating in a venture that trafficking another person” (Section 98.002 of the Civil Practice and Remedy Code). As the Court interpreted Section 98.002, “participation in a venture” arises not from a website’s mere failure to take actions against this kind of communications, but from its own “affirmative acts to facilitate injurious communications”. According to the defendants’ claims, Facebook “created a breeding ground for sex traffickers […]”, “knowingly aided, facilitated and assisted sex traffickers […]”, and “knowingly benefited from that assistance.” The Court held that these claims may be taken as affirmative acts by Facebook to encourage trafficking activities on its platforms and thus Facebook’s “CDA immunity” does not apply. As a result, these claims may proceed to further litigation.
In a nutshell, the Supreme Court denied mandamus relief in part and grant it in part. More specifically, as analyzed above, the Court held that the plaintiffs may proceed with their sex trafficking claims based on the Texas Statute, but dismissed their ‘negligence claim’. Therefore, the human trafficking claim (for knowingly or intentionally benefiting from participation in a human-trafficking venture) under Section 98.002 of the Civil Practice and Remedy Code may proceed to further litigation, since, according to the Supreme Court’s judgment, it is not barred by Section 230 of the Communications Decency Act.
The victim has filed a lawsuit before the District Court of Texas (Cause No. 2018-69816 (334th Dist. Ct.)).
The victim has filed a lawsuit before the District Court of Texas (Cause No. 2018-82214 (334th Dist. Ct.)).
The victim has filed a lawsuit before the District Court of Texas (Cause No. 2019-16262 (151st Dist. Ct.)).
Section 98.002 - Liability
(a) A defendant who engages in the trafficking of persons or who intentionally or knowingly benefits from participating in a venture that traffics another person is liable to the person trafficked, as provided by this chapter, for damages arising from the trafficking of that person by the defendant or venture.
TEX. CIV. PRAC. & REM. CODE § 98.002(a).
Plaintiffs claim that “Facebook breached this duty by knowingly facilitating . . . sex trafficking.” In doing so, Facebook allegedly created “a breeding ground for sex traffickers to stalk and entrap survivors,” raised “advertising fees by extending its ‘user base’ to include sex traffickers,” increased “profits by not using advertising space for public service announcements regarding the dangers of . . . sex traffickers,” and lastly, increased “profit margins due to lower operation cost by not implementing safeguards requiring verification of [users’] identit[ies].”
The human trafficking claim (for knowingly or intentionally benefiting from participation in a human-trafficking venture) under Section 98.002 of the Civil Practice and Remedy Code may proceed to further litigation, since, according to the Supreme Court’s judgment, it is not barred by Section 230 of the Communications Decency Act.
The Supreme Court’s ruling is important in terms of corporate civil liability, and specifically liability for interactive internet services for trafficking in persons. In particular, the Supreme Court of Texas proceeded to an interpretation of section 230 of the federal Communication Decency Act (“CDA”) that puts an end to immunity of interactive internet services for the actions of traffickers who use social media platforms to lure victims into trafficking. According to the Supreme Court’s judgment, section 230 should not be used to create “a lawless no-man’s-land on the Internet” in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking. In interpreting section 230, the Court distinguished between holding social media platforms accountable for the words or actions of their users – which is barred by section 230 -, and holding internet platforms accountable for their own misdeeds.