Websites that host pornography are facing a new crop of litigation by people who accuse them of profiting from abusive content – from child sex abuse images and a rape video to nonconsensual pornography.
At least a dozen lawsuits have been filed under U.S. federal anti-trafficking statutes against social media companies and other websites since 2019. In nearly every case, the companies say they are shielded from liability by a federal law designed to safeguard free speech.
That 28-year-old law – Section 230 of the U.S. Communications Decency Act – has come under fire on multiple fronts in a larger debate over free speech and online moderation. The law broadly immunizes websites from liability for user-generated content. Some sex abuse victims say the law discourages platforms from addressing online harms. In a recent hearing on online child abuse, U.S. senators called for legal reforms as they grilled social media executives.
Fueling the anti-trafficking suits is another law – a six-year-old federal statute that carves out an exception to Section 230. The Fight Online Sex Trafficking Act, or FOSTA, allows victims to sue websites that knowingly host abusive commercial sex activity.
How to define “knowingly” is at the center of many of the legal fights. Federal judges have interpreted the term in different ways, with huge stakes for both plaintiffs and websites that feature sexually explicit content.
In one of the most recent suits, filed in 2022 in federal court in southern Florida, a woman accused OnlyFans, a site that allows people to sell explicit videos of themselves, of profiting from a video of two men allegedly raping her.
OnlyFans says it is immune to such litigation because of Section 230, according to a court filing by its U.S. subsidiary, Fenix Internet. It will seek to have the case dismissed, it says. The platform declined to comment further to Reuters about this case or any other legal questions.
Lawyers for the woman say OnlyFans is not immune, citing FOSTA. The woman, Sammy, detailed her experience to Reuters for a related story about nonconsensual porn on OnlyFans.
Under FOSTA, a website can be sued if found to be “knowingly assisting, supporting or facilitating a violation” of federal sex trafficking laws. Courts have defined sex trafficking as commercial sex activity conducted under “force, fraud or coercion.” Some judges have interpreted the term “knowingly” to mean a company must have “actual knowledge” of the specific abuse alleged, and to have actively participated in it to be held liable.
At least one federal court has said that only a general “constructive knowledge” of the abusive sexual activity is required. This lower standard can be met by showing the company was generally aware of such abuses even if it was unaware of the specific case.
With the law unsettled, the decision of which standard to use may ultimately lie with the U.S. Supreme Court.
In August 2021, a judge in federal court in northern California used the lower standard of “constructive knowledge” in a case involving allegations that links to sexual abuse videos of two boys appeared on Twitter, now known as X. The judge ruled in favor of the plaintiffs, saying that Twitter benefited from the content and “knew or should have known” of the alleged abuse.
In May last year, the U.S. Court of Appeals for the 9th Circuit reversed that decision. It applied the higher standard, saying Twitter would need to have had actual knowledge of the specific abuse and “knowingly” participated in it. The appeals court sent the case back to the district court, which dismissed it. A lawyer for the boys said they plan to appeal.
A spokesperson for X declined to comment on the litigation but said the platform has zero tolerance for any material that features or promotes child sexual exploitation.
Another case out of California could bode well for sites that host porn.
In a proposed class-action lawsuit filed in U.S. District Court for central California against social-media company Reddit in April 2021, the parents of children who appeared on the site and a former minor alleged Reddit did too little to remove child sex abuse material and financially benefited from illegal posts. They asked a judge to rule on whether their case met the threshold for an exception to Section 230 under FOSTA.
The federal court dismissed their lawsuit, finding that Reddit remained protected by Section 230, and the 9th Circuit appeals court upheld the decision. The appeals court said the allegations “suggest only that Reddit ‘turned a blind eye’ to the unlawful content posted on its platform, not that it actively participated in sex trafficking.”
Brian Holm, a lawyer who has represented victims of online sex abuse, said the rulings in the Reddit and Twitter cases effectively encouraged platforms to take a hands-off approach to moderating sexual content because that made it easier to claim they had no knowledge of a specific case if sued.
“There’s no incentive to actually stop it,” he said.
A Reddit spokesperson rejected this interpretation and said that, rather than turning a blind eye, the company constantly works to eradicate abusive content.
Reddit and Twitter are very different from OnlyFans: They have a wide range of non-sexual content, while OnlyFans specializes in porn. But all three platforms say they diligently monitor content. OnlyFans says rigorous moderation and safety are crucial to its business model.
“Everything is visible to our moderators,” said its CEO Keily Blair, then the company’s chief strategy and operations officer, at a conference in Britain in May 2023. Aided by artificial intelligence, OnlyFans reviewed “100%” of content, Blair said, while its onboarding team approved “every single creator.”
Yet nonconsensual porn makes it onto the platform anyway, Reuters found.
In their 2022 complaint against OnlyFans, Sammy’s lawyers alleged that Fenix had “constructive knowledge” that OnlyFans allowed individuals “to post and profit from illegal pornographic and trafficked content.”
OnlyFans generates revenue from millions of porn creators who sell content to their own subscribers or “fans.” Creators keep 80% of their fans’ payments, and OnlyFans takes the rest. The video of the woman’s alleged rape was sold for $20 on OnlyFans, according to law enforcement records.
Todd Falzone, a lawyer for Sammy, said OnlyFans is “participating financially in this particular sale or transaction as partners with the person who’s engaging in the crime.”
He said OnlyFans’ claims to vet creators and closely monitor content make it hard for the company to claim no knowledge of a video depicting rape.
OnlyFans is not the only porn-dominated site that experts see as potentially vulnerable to legal action.
Aylo Holdings, the parent company of Pornhub, faces five lawsuits filed by women who accuse it of hosting sexually abusive content and sued under the federal sex trafficking statute and FOSTA. In all five cases, Aylo has denied the allegations and claimed immunity under Section 230. Judges certified two of the cases late last year as class-action lawsuits, paving the way for others to seek relief through the courts.
In 2021, Aylo – then named MindGeek – settled a sex trafficking suit brought by 50 women who accused the site of hosting nonconsensual porn and sought more than $100 million in damages. Holm, the lawyer who represented the women, said he had been following the FOSTA legislation for years before filing that suit to counter a possible immunity defense.
“We always believed Pornhub was culpable,” he said, but at the time “it was unclear whether Pornhub would receive any immunity under Section 230. Then FOSTA passed.”
Aylo declined to comment on the litigation but said “the safety of our community is our number one priority.”
Carrie Goldberg, a New York lawyer specializing in sexual privacy and nonconsensual porn cases, said there was another way to overcome the hurdle of Section 230. That is to argue that a platform is “not just a beneficiary of other people’s trafficking, but it is actually a trafficking venture.”
Goldberg used this idea of “venture liability” to obtain a settlement in a case against the chat service Omegle, involving allegations that a pre-teen was blackmailed into sending “obscene” content to a sexual predator. The suit alleged that Omegle knew it was pairing minors with sexual predators in order to maintain profits at children’s expense. Shortly after the case settled in November for an unspecified amount, Omegle shut down.
Omegle couldn’t be reached for comment.
Goldberg isn’t involved in litigation against OnlyFans, but said,“if I had a case against OnlyFans that was really horrific, like the one against Omegle, I would use that same theory.”
(Reuters)
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