UPDATE: In March 2016, relying in large part on Section 230, the U.S. Court of Appeals for the First Circuit affirmed the district court's dismissal of plaintiffs' lawsuit.

A federal judge in Massachusetts dismissed a lawsuit brought against the classified ads website Backpage.com over posting ads for the sexual trafficking of minors. While acknowledging that criminals behind this ''abhorrent evil'' exploit the Internet as a marketing tool, the judge correctly concluded that Backpage.com couldn't be sued for running the ads, relying largely on Section 230 (47 U.S.C. § 230), the law that immunizes websites from liability based on user-generated content. EFF filed an amicus brief in the case on behalf of itself, the Center for Democracy & Technology, and Professor Eric Goldman, urging the court to broadly apply Section 230 as Congress intended.

The plaintiffs in the case of Doe No. 1 v. Backpage.com, LLC are young women who were allegedly sold for sex as minors via ads placed on Backpage.com. The plaintiffs brought various claims against Backpage.com even though it did not have a hand in creating or posting the ads. The ads were posted by traffickers or by the plaintiffs themselves at the direction of their traffickers.

Our amicus brief had focused on two exceptions to Section 230, the first for actions “enforcing” federal criminal law, and the second for intellectual property (IP) claims.

With respect to the federal criminal law exception, the court rejected the plaintiffs' argument that Section 230 did not apply to civil actions that are created by federal criminal laws (but still brought by private parties rather than prosecutors). The court here specifically explained that it found EFF persuasive in arguing that the chilling effect of extending this exception to private actions would be particularly serious because they would not be subject to the filter of prosecutorial discretion and the heightened standard of proof present in criminal prosecutions.

With respect to the IP exception, the court, echoing a position urged in our amicus brief, expressed doubt that a right of publicity action was an intellectual property claim at all. Ultimately, however, the court rejected the right of publicity claim on its merits rather than decide the Section 230 question.

The court’s decision contains several other important rulings regarding Section 230:

The court rejected plaintiffs’ argument that because Section 230 was enacted to foster Internet communication when the Internet was in its relative infancy, Section 230 should now be “whittled back” in scope. The judge held that to the contrary, both the courts and Congress have continued to apply Section 230’s immunity expansively.

The court rejected plaintiffs’ argument that because Section 230 was enacted to foster Internet communication when the Internet was in its relative infancy, Section 230 should now be “whittled back” in scope. The judge held that to the contrary, both the courts and Congress have continued to apply Section 230’s immunity expansively. The court rejected the argument that Backpage.com was an “information content provider” rather than a conduit for use-generated content. The court explained that none of the bad acts plaintiffs alleged Backpage.com performed—generating sponsored ads with images of plaintiffs, generating navigational paths identifying the ads as falling within the “escorts” category, stripping metadata from photographs—amounted to Backpage.com’s creation of the objectionable content. The court specifically rejected the argument that Backpage.com acted improperly in hosting anonymous users or accepting payments from anonymous sources “in Bitcoins, peppercorns, or whatever.”

The court rejected the argument that Backpage.com was an “information content provider” rather than a conduit for use-generated content. The court explained that none of the bad acts plaintiffs alleged Backpage.com performed—generating sponsored ads with images of plaintiffs, generating navigational paths identifying the ads as falling within the “escorts” category, stripping metadata from photographs—amounted to Backpage.com’s creation of the objectionable content. The court specifically rejected the argument that Backpage.com acted improperly in hosting anonymous users or accepting payments from anonymous sources “in Bitcoins, peppercorns, or whatever.” The court rejected plaintiffs’ argument that Section 230 only immunized good faith actions. The court explained that the two provisions of Section 230 work in tandem, with the first providing a broad immunity for publishing third-party content and the second providing immunity for liability arising from good faith efforts to remove offensive content.

The court rejected plaintiffs’ argument that Section 230 only immunized actions. The court explained that the two provisions of Section 230 work in tandem, with the first providing a broad immunity for publishing third-party content and the second providing immunity for liability arising from good faith efforts to remove offensive content. The court rejected the plaintiffs’ argument that Section 230 did not apply because they were suing Backpage.com over the website’s design and operation and not because of the third-party content: “Without the offending ads, however, no nexus would exist between Backpage and the harms suffered by the Doe plaintiffs.”

The court rejected the plaintiffs’ argument that Section 230 did not apply because they were suing Backpage.com over the website’s design and operation and not because of the third-party content: “Without the offending ads, however, no nexus would exist between Backpage and the harms suffered by the Doe plaintiffs.” The court rejected the argument that either knowledge or tacit encouragement of illegal content can be the basis for liability. Such an “encouragement test” would eclipse the protection Congress created when it enacted Section 230, the court said.

The court rejected the argument that either knowledge or tacit encouragement of illegal content can be the basis for liability. Such an “encouragement test” would eclipse the protection Congress created when it enacted Section 230, the court said. The court also rejected the plaintiffs’ copyright claims on their merits.

The court was careful to explain that it appreciated the seriousness of the harms the plaintiffs alleged:

To avoid any misunderstanding, let me make it clear that the court is not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of children as anything other than an abhorrent evil. Finally, the court is not naïve – I am fully aware that sex traffickers and other purveyors of illegal wares ranging from drugs to pornography exploit the vulnerabilities of the Internet as a marketing tool. Whether one agrees with its stated policy or not (a policy driven not simply by economic concerns, but also by technological and constitutional considerations), Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.

The plaintiffs must now decide whether to appeal the decision to the U.S. Court of Appeals for the First Circuit.

EFF will continue to advocate for a broad application of Section 230 in the United States. We have also been working with partner organizations to develop the Manila Principles on Intermediary Liability, which was presented at RightsCon 2015 and are inspired, in part, by Section 230.