Reddit Inc. won’t have to face a lawsuit from the victims of child pornography who claimed the company “turned a blind eye” to sex trafficking on its platform, the Ninth Circuit court of appeals ruled Monday.
The social discussion platform—one of the most visited websites in the world—successfully invoked the legal immunity provided by Section 230 of the Communications Decency Act. That 1996 law, which protects internet platforms from lawsuits over content posted by their users, has faced increasing scrutiny in recent years, with critics from both ends of the political spectrum arguing that it shields some of the world’s largest companies from accountability.
The case hinged on the legislative text of a 2018 amendment to Section 230, known as the Fight Online Sex Trafficking Act, which created a carve-out to the broad legal protection by allowing victims of trafficking to bring civil lawsuits against platforms that helped the traffickers.
But the Ninth Circuit panel ruled on Monday that Section 230 still protects Reddit despite FOSTA, as the plaintiffs failed to show that the platform “knowingly benefited” from the trafficking, Judge Milan D. Smith wrote for the court.
As enacted, FOSTA “retains only a limited capacity to accomplish its original goal of allowing trafficking victims to hold websites accountable,” Smith wrote.
“However, this is a flaw, or perhaps a feature, that Congress wrote into the statute, and is not one we can rewrite by judicial fiat,” he said.
The lawsuit contained hundreds of allegations that Reddit over the last decade ignored requests to remove child pornography posted on discussion threads known as subreddits, while profiting from advertisements featured on those threads. Reddit’s unique content moderation system allows volunteer moderators to regulate posts on the topic-specific forums.
The complaint, filed as a class action in the Central District of California in 2021, claimed that numerous subreddits on the website explicitly focus on sharing child sexual-abuse material. District Judge James Selna dismissed the case, citing Section 230, and the plaintiffs appealed.
Attorneys for both parties didn’t respond to requests for comment.
FOSTA’s ‘Limited Capacity’
FOSTA was enacted in the wake of congressional and federal law enforcement investigations into Backpage.com, a classified advertising website accused of harboring child sex trafficking. The Justice Department seized the website in 2018 and charged its executives with facilitating prostitution.
The legislation has been the only major modification to Section 230 in its more than quarter-century existence despite dozens of recent proposals from both parties seeking to amend or repeal the law.
Legal scholars have pointed out that FOSTA is confusing because it references two different legal standards to evaluate what level of knowledge of trafficking websites like Reddit had to have in order to face liability.
FOSTA states that the liability shield doesn’t apply when plaintiffs bring a civil claim for sex trafficking “if the underlying claim constitutes a violation of” the federal criminal sex trafficking ban.
Smith wrote that plain text of the statue and its legislative history indicate that Reddit is still shielded by Section 230.
He said that in order to bring a civil lawsuit against Reddit, plaintiffs first have to show the platform “knowingly benefited” from trafficking—a high knowledge standard outlined in the criminal trafficking ban. The civil code, in contrast, contains a lower knowledge standard: that Reddit “knew of should have known” of the trafficking.
The plaintiffs argued in their briefs that such a reading runs contrary to the purpose of the legislation, “imperils civil enforcement of federal sex-trafficking laws,” and “denies victims the remedies that Congress guaranteed.”
Smith wrote that the victims may have succeeded in their lawsuit under the original version of the FOSTA bill, but a last-minute amendment set the the higher knowledge standard.
The lawsuit didn’t allege that Reddit itself “actively participated in sex trafficking,” he said.
“The plaintiffs have not alleged a connection between the child pornography posted on Reddit and the revenue Reddit generates, other than the fact that Reddit makes money from advertising on all popular subreddits,” the opinion said.
The Ninth Circuit’s decision comes after the US Supreme Court early this month decided that it will hear a case challenging whether YouTube’s recommendation algorithms are protected under Section 230. The case will be the first time the country’s highest court will weigh in on the scope of the law.
Judge Gerswin A. Drain joined the opinion. Judge Ryan D. Nelson wrote an concurring opinion, agreeing with the outcome reached by the majority but disagreeing with the opinion’s need to discuss of the legislative history of FOSTA.
Susman Godfrey LLP and Pollock Cohen LLP represent the victims. Gibson Dunn & Crutcher LLP represents Reddit.
The case is Does v. Reddit Inc., 9th Cir., No. 21-56293, published opinion 10/24/22.
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