Kris Olson, The Daily Record Newswire
While stressing that he was "not unsympathetic to the tragic plight" of three plaintiffs who said they were raped hundreds of times after being trafficked on a website's escorts section, U.S. District Court Judge Richard G. Stearns granted the motion to dismiss of defendants backpage.com, Camarillo Holdings and New Times Media on May 15.
Stearns called the sexual trafficking of children "an abhorrent evil," but said that "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.com's business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact."
In advance of the ruling, Boston business litigator Lee T. Gesmer predicted that the decision, no matter which way it went, would be appealed to the 1st Circuit and perhaps to the Supreme Court as well.
The three women were represented pro bono by the Boston law firm Ropes & Gray, which has indicated it will, in fact, appeal the decision.
"This case presents a clash between two goals: the desire to support the development of the Internet and the critical need to curtail the online sexual exploitation of children," the firm said in an emailed statement. "We strongly disagree with the court's conclusion that, where these goals conflict, the Internet always prevails under a federal statute that is intended to limit claims against Internet service providers. According to the district court, this is so even where a website operator intentionally engages in criminal conduct that violates another federal statute prohibiting participation in child sex trafficking. We intend to appeal to secure the rights of the child victims in this case to the remedies provided under the federal Trafficking Victims Protection Act and other statutes."
The statement continued, "We have always expected that, because of the complexity and importance of the issues, this case would quickly make its way to the First Circuit Court of Appeals, regardless of which way the district court ruled on the motion to dismiss. We are looking forward to the opportunity to continue to litigate these important issues in the appellate court."
The plaintiffs attempted, as many have before, to find a way around the civil immunity provided to Internet service providers under §230 of the Communications Decency Act. They argued that courts have been "whittling back the scope of section 230 immunity as the Internet has shed its training wheels."
But Stearns found otherwise, pointing out that Congress had actually strengthened the act to "preempt the enforcement of inconsistent foreign judgments."
He also rejected an "attempt to repackage" backpage.com as an "information content provider."
The plaintiffs tried to argue that private suits are part of the enforcement mechanism of the Trafficking Victims Protection Reauthorization Act of 2008 and thus covered by an exception to §230 immunity, but the defendants pointed out that courts had consistently rejected that argument.
Stearns quoted at length the magistrate judge in the 2006 case Doe v. Bates out of the Eastern District of Texas in siding with the defendants. Bates found that the plain text of the statute and congressional intent require adoption of the defendants' position.
"Child pornography obviously is intolerable, but civil immunity for interactive service providers does not constitute 'tolerance' of child pornography any more than civil immunity from the numerous other forms of harmful content that third parties may create constitutes approval of that content," the judge in Bates wrote.
Stearns cited favorably the argument of one of the filers of amicus briefs in the case, EFF, noting that "only criminal prosecutions are exempted from section 230's immunity because they are subject to the filter of prosecutorial discretion and a heightened standard of proof, making them less likely to have a chilling effect on the freedom of online speech."
Stearns also found that the plaintiffs' claim of unfair and deceptive business practices under G.L.c. 93, §9 was untenable.
"Their theory that absent the permissive website design and imperfect filtering, their pimps would not have trafficked them or, if they had attempted to do so, law enforcement would have scrutinized Backpage more closely and would possibly have intervened to prevent their injuries is too speculative to fall as a matter of law within the penumbra of reasonably foreseeability," Stearns wrote.
Moreover, he continued, "courts have repeatedly rejected this 'entire website' theory as inconsistent with the substance and policy of section 230."
A right-of-publicity claim was also rejected. Stearns said it was settled law in Massachusetts that such a claim requires not just "incidental use" of photographs but use of "the plaintiff's name, portrait or picture deliberately to exploit its value for advertising or trade purposes."
One of the plaintiffs asserted a copyright infringement claim to her photo, which also failed due to a lack of "plausible link" between the photo and the defendants' profits. The plaintiff failed to allege any loss of revenues or licensing fees as a result of the infringement, Stearns said.
Published: Mon, May 25, 2015
