123 F.4th 788
5th Cir.2024Background
- Plaintiffs are sex trafficking victims trafficked via ads on Backpage.com, who sued Salesforce, its cloud-based customer relationship manager and business support provider.
- Plaintiffs allege Salesforce knowingly assisted and enabled Backpage’s operations despite knowing it facilitated sex trafficking.
- Lawsuits allege violations of the Trafficking Victims Protection Act and Texas state law, premised on Salesforce’s role in supporting Backpage’s business functions.
- Salesforce sought summary judgment, claiming immunity under section 230 of the Communications Decency Act by arguing it should not be liable for harms stemming from third-party content.
- The district court denied summary judgment, finding section 230 inapplicable because the claims do not treat Salesforce as a publisher/speaker of third-party content.
- Salesforce's appeal brought the issue before the Fifth Circuit, which conducted de novo review focused on whether Plaintiffs’ claims treat Salesforce as a publisher/speaker, making it eligible for section 230 immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Section 230 immunize Salesforce from liability for providing services to Backpage? | Claims do not seek to treat Salesforce as a publisher/speaker of third-party ads. | Section 230 bars all claims tied to third-party content ads. | Section 230 immunity does NOT apply; claims don’t treat Salesforce as a publisher. |
| Is immunity broad enough to cover all conduct with third-party content as a causal link? | Liability stems from Salesforce’s separate business conduct, not publication. | All claims with third-party content as the only harm link are barred. | A but-for or "only-link" analysis is improper; only publisher/speaker functions are barred. |
| Did Salesforce’s actions amount to publishing/hosting third-party content? | Salesforce provided business infrastructure, not content moderation or hosting. | Providing CRM services equates to publishing/hosting content. | Business tools provision is not a publisher role; Section 230 doesn't apply. |
| Are Plaintiffs artfully pleading to circumvent Section 230? | Claims reflect actual distinct statutory duties, not disguised publisher claims. | Plaintiffs are reframing publisher-liability as statutory duty. | No artful pleading; claims are not inherently about publisher conduct. |
Key Cases Cited
- Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (adopted claim-specific analysis to determine if Section 230 bars claims based on whether they target publisher functions)
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (Section 230 bars liability for traditional publisher editorial functions)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (distinction between publisher liability and other duties for section 230 analysis)
- Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc) (claims analysis approach for Section 230 applicability)
- Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019) (scope of Section 230 immunity based on duty imposed by claim)