Ninth Circuit Affirms Dismissal Of Sex Trafficking Claims Against Reddit, Holding That FOSTA Exception Did Not Preclude CDA 230 Immunity

• Published date: 31 October 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, IT and Internet, Advertising, Marketing & Branding
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Mr Jeremy Goldman

On October 24, 2022, the Ninth Circuit affirmed the district court's dismissal of a putative class action against Reddit that sought to hold the Internet service provider liable for sex-trafficking violations. The court held that the claims were barred by Section 230 of the Communications Decency Act and did not fall within the controversial "FOSTA" exception to Section 230. With the historically broad scope of Section 230 immunity currently under review by the U.S. Supreme Court, the decision, which resolved a district court split on the level of culpability required to hold service providers liable for sex trafficking claims, is a welcome development for Internet platforms that host or facilitate user-generated content.

The operative provision of Section 230 provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."47 U.S.C. ' 230(c)(1). "Though somewhat jargony, this provision shields from liability those individuals or entities that operate internet platforms, to the extent their platforms publish third-party content." Lemmon v. Snap, Inc., 995 F.3d 1085, 1090- 91 (9th Cir. 2021).

Importantly, Section 230(e) sets forth five exceptions to this broad immunity. A service provider cannot claim immunity as a basis to dismiss a federal criminal prosecution or any lawsuit brought under intellectual property laws, state laws that are consistent with Section 230, certain electronic communications privacy laws, or certain sex trafficking laws.

The sex trafficking exception was added in 2018 by the Allow States and Victims to Fight Online Sex Trafficking Act of 2017'or "FOSTA." Under Section 230(e)(5), immunity does not extend, among other areas, to any federal civil claim brought under the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. ' 1591 ("TVPRA") - the federal statute criminalizing sex trafficking. Thus, if a service provider's activity is held to violate the TVPRA, Section 230 will not immunize it from civil liability, even if the service provider merely acted as a publisher of user content that the service provider did not itself create or develop.

Victims of sex trafficking have brought claims, with mixed success, against service providers that allegedly benefited from these illicit activities. For example, in Doe v. Twitter, Inc., 555 F. Supp. 3d 889, 915 (N.D. Cal. 2021), two minors alleged that they had been...