614 F.Supp.3d 814
D. Or.2022Background
- Plaintiff A.M. (an 11-year-old in 2014) alleges Omegle randomly matched her with an adult, Ryan Fordyce, who sexually abused her online over several years and coerced her to produce sexual images and recruit other minors.
- Canadian police in January 2018 seized thousands of child‑pornography files from Fordyce, including hundreds of files of A.M.; Fordyce has been criminally charged.
- A.M. sued Omegle alleging product‑liability (design and warning defects), negligence (design and warning), federal sex‑trafficking causes of action (18 U.S.C. §2421A and §1595/§1591), an Oregon trafficking statute (ORS 30.867), and negligent misrepresentation.
- Omegle moved to dismiss invoking Section 230(c)(1) immunity; the court evaluated whether the claims treat Omegle as a publisher or instead allege a defective product/design duty independent of content publication.
- The court denied dismissal as to claims 1–4 (product‑liability/negligence), dismissed claim 5 (§2421A) and claim 7 (ORS 30.867) with prejudice, and required amendment of the §1595 claim (claim 6), dismissing it without prejudice for insufficient mens rea/venture/profit allegations. Claim 8 was dismissed with leave to amend and not reasserted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §230 bars product‑liability/negligence claims (claims 1–4) | Omegle’s design and warning duties are independent of any obligation to edit or publish third‑party content | Plaintiff’s claims merely challenge Omegle’s failure to monitor/police user content and are therefore publisher conduct barred by §230 | Court: §230 immunity does not apply; claims 1–4 may proceed (distinguishing Doe; following Lemmon) |
| Whether 18 U.S.C. §2421A (FOSTA) applies to pre‑enactment conduct (claim 5) | FOSTA creates a civil remedy for facilitating prostitution/trafficking and should apply to plaintiff’s claims | §2421A lacks an explicit retroactivity clause; alleged conduct occurred before FOSTA’s enactment | Court: §2421A not retroactive; claim 5 dismissed with prejudice |
| Whether §230’s carveout covers state civil trafficking claims (ORS 30.867, claim 7) | State trafficking claim should survive §230 because FOSTA and trafficking concerns override immunity | §230(e)(5) text carves out only certain federal claims and specified state criminal prosecutions, not state civil trafficking claims | Court: §230 does not carve out state civil trafficking claims; claim 7 dismissed with prejudice |
| Mens rea and predicate requirements for §1595 civil liability under §1591 (claim 6) | Plaintiff need only plead a negligent/"knew or should have known" standard for §1595 | §230(e)(5)(A) waives immunity only where the §1595 claim is based on conduct that violates §1591, which requires actual knowledge—so §1591’s mens rea must be alleged | Court: Adopts view that §1595 claims must be predicated on a §1591 violation (actual‑knowledge mens rea); plaintiff failed to plead venture/profit/actual knowledge adequately—dismissed without prejudice to amend |
Key Cases Cited
- Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021) (negligent‑design/products claim can fall outside §230 when duty derives from product design rather than content publication)
- Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021) (three‑prong test for §230 publisher immunity)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (publication liability involves reviewing, editing, or deciding to withdraw third‑party content)
- Kimzey v. Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016) (websites commonly fit §230’s definition of interactive computer service)
- Doe v. Twitter, Inc., 555 F. Supp. 3d 889 (N.D. Cal. 2021) (distinguishable; held §230 did not bar trafficking claims where the site’s content‑distribution features were implicated)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (statutory‑interpretation principle cited for reading a provision to limit immunity where Congress' text indicates)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading‑standard: factual allegations must plausibly state a claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading‑standard: plausibility and non‑conclusory allegations required)