The Texas Supreme Court has set oral arguments to be heard on February 21, 2021, in the cases of In Re Facebook, Inc. and Facebook, Inc. D/B/A Instagram. This issue to be decided is whether a minor human trafficking victim may bring a lawsuit against social media platforms such as Facebook when alleging that their exploiters used social media to recruit them or whether these sites are immune under the Communications Decency Act 47 U.S.C. Sec. 230. The Facebook human trafficking lawsuit is akin to a failure to warn case alleging that the company was aware that its platform was a hunting ground for predators on minors but that they failed to act to warn or protect users.
The Underlying Texas Backpages Lawsuit
The three underlying cases involve allegations by minor Plaintiffs that they were recruited or “groomed” on the social media giant’s platform and trafficked as sex slaves using the Backpages as a means of locating Johns to exploit the minors at hotels. They center largely around the Backpages’ actions in “filtering” sexually explicit ads so that alleged sex trafficking is concealed. The lawsuits contain allegations against Facebook, the Backpages, several owners of the Backpages, and various hotel entities for their alleged part in allowing the human trafficking to continue and/or failure to warn users.
What is the Communications Decency Act?
The Communication Decency Act, 47 U.S.C. Sec. 230, is a federal law enacted to give internet service providers and websites a certain degree of immunity from being sued for statements made by others by way of their software or services. It also provides immunity for service providers who take action to restrict or block “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable” material. Its purpose is to promote the advancement of the internet and technology while enabling vigorous enforcement of Federal laws prohibiting obscenity, sex trafficking, stalking, and harassment.
Is Facebook Immune from Liability for Human Trafficking?
The Communication Decency Act contains an exception to immunity for civil actions brought pursuant to 18 U.S.C. Sec. 1595 against companies that benefit from the sexual exploitation of minors. Thus, companies like Facebook are not completely immune from civil liability. However, the Texas Backpages lawsuit is not filed under that law. Rather, it is filed under the Texas state law counterpart—which also allows taking civil action against companies that profit from the sexual exploitation of minors. The Communications Decency Act does not specifically state that it extends the immunity waiver to individual state laws that serve the same purpose.
Food for Thought
The viability of the state court Facebook human trafficking lawsuit is of great interest to human trafficking lawyers looking at holding websites responsible for their role in the human trafficking of minors. If the Texas Supreme Court follows the letter of the law, it seems that the claims against Facebook must be dismissed. However, clearly, the spirit of the law is to provide limited immunity while still allowing actions to be brought against those who profit from child exploitation. Thus, the plaintiffs will urge the Texas Supreme Court to follow the spirit vs the letter. Whether the Communication Decency Act will protect Facebook, in this case, is unlikely to be decided for some time. Due to the magnitude of the issue, it is likely that whoever loses in the Texas Supreme Court will appeal all the way up to the U.S. Supreme Court before accepting the answer. Since this is likely to be a costly venture, one can understand why social media companies and internet providers are starting to scrutinize the legality of the manner in which customers use their services and censor questionable speech.