Ninth Circuit Interprets FOSTA Restriction On Section 230 Narrowly

• Published date: 01 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Criminal Law, IT and Internet, Trials & Appeals & Compensation, Crime
• Law Firm: Morrison & Foerster LLP
• Author: Mr Aaron Rubin, J. Alexander Lawrence and Dillon Kraus

On October 24, the Ninth Circuit ruled that Section 230 of the Communications Decency Act¹ shielded Reddit Inc. from liability under the Trafficking Victims Protection Reauthorization Act (TVPA).² The court considered the text of a 2018 amendment to Section 230, known as the Fight Online Sex Trafficking Act (FOSTA),³ which created a carve-out to Section 230's broad protections by allowing victims to bring claims against platforms that aided in their trafficking. The Ninth Circuit held that the FOSTA exception does not apply where a provider does not "knowingly benefit" from such trafficking.⁴ This is the first time that a federal court of appeals has interpreted how broadly the FOSTA exception to Section 230 applies.

I. Section 230 Protections and FOSTA

Section 230, once hailed as "the law that gave us the modern Internet,"⁵ provides broad immunities to internet platforms that host third-party content.⁶ It has emerged in recent years as the cause of much debate.

In 2018, FOSTA was enacted as a response to sex trafficking claims against Backpage.com, and the belief that Section 230 insulated the site from liability for facilitating sex trafficking.⁷ FOSTA provides that Section 230 does not impair enforcement of "any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting sex trafficking," nor "impair the enforcement or limit the application of section 1595 of title 18, United States Code."⁸ While there has been much discourse about whether and how to amend Section 230, FOSTA is the only piece of proposed federal legislation to date that has become law.⁹

Section 230 provides important protections for many major companies, and these companies, alongside proponents of an uncensored Internet, raised concerns that FOSTA would have deleterious ripple effects, including limiting free speech.¹⁰ The central question that concerned platforms was whether FOSTA meant that they could be held liable when their users violated the sex trafficking statutes underlying FOSTA, or whether they themselves had to violate those laws.¹¹

II. The District Court Opinion

Reddit is a social news aggregation and discussion website that allows users to create forums, or "subreddits," based on specific interests or community themes. It is essentially a huge collection of forums in which users can comment on and share content, including photos, videos, and links to other sites. Given that it hosts large quantities of user-generated content, Reddit relies heavily on Section 230 to shield it from liability.

In April 2021, the plaintiffs sued Reddit as part of a putative class action, alleging that Reddit not only failed to stop, but actively profits from, child sexual exploitation materials (CSEM) on its site.¹² The plaintiffs alleged that Reddit was lackluster in its attempts to remove CSEM from its site and to enforce its own CSEM...