104 F. Supp. 3d 149
D. Mass.2015Background
- Plaintiffs (three Jane Does) allege they were sex‑trafficked after being advertised on Backpage.com’s "escorts" section; ads were paid for with prepaid cards/phones and included plaintiffs’ photos and youth indicators.
- Plaintiffs allege Backpage charged fees for adult ads, permitted anonymous payment/posting, stripped photo metadata, and used weak filters that allowed suggestive circumlocutions.
- Plaintiffs say Backpage maintained a façade of moderation (limited referrals to NCMEC, selective takedowns) and structured the site to facilitate child‑sex trafficking, profiting from ad fees.
- Claims in the Second Amended Complaint: federal TVPRA (18 U.S.C. § 1595), Massachusetts anti‑trafficking statute (MATA), Mass. consumer protection (Ch. 93A), state publicity torts, and copyright infringement (photo of Doe No. 3).
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6), principally asserting immunity under the Communications Decency Act (47 U.S.C. § 230).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 230(e)(1) preserves civil TVPRA claims against an interactive service | § 230(e)(1) preserves enforcement of federal criminal statutes; private civil suits enforce those laws and should not be barred | § 230 immunity bars private civil claims premised on third‑party content; § 230(e)(1) preserves only governmental criminal enforcement | Court held § 230 preempts plaintiffs’ TVPRA civil claims — exception covers government criminal enforcement, not private civil suits |
| Whether site design/operation ("entire website" theory) can defeat § 230 immunity for consumer‑protection and state trafficking claims | Plaintiffs argue liability arises from Backpage’s architecture and business practices, not the ads themselves | Defendants argue site features are passive, neutral tools; structure does not make Backpage an "information content provider" | Court rejected "entire website" theory and held Ch. 93A and state trafficking claims preempted by § 230 |
| Whether Backpage became an "information content provider" by moderating, filtering, stripping metadata, or facilitating ad formatting | Plaintiffs/amici: these actions materially contributed to content development or encouraged illegal posts, stripping metadata and ad design facilitated trafficking | Defendants: these are neutral, standard hosting/editorial actions that do not create or develop third‑party content | Court found alleged practices insufficient to convert Backpage into an information content provider; § 230 immunity applies |
| Whether Doe No. 3’s intellectual property claims (right of publicity, copyright) survive | Plaintiffs assert § 230(e)(2) preserves IP claims; photo use and site profits give rise to publicity and infringement claims | Defendants: publicity claim fails because use was incidental; copyright claim fails for lack of causally linked damages/profits | Court (assuming § 230(e)(2) preserves IP claims) dismissed publicity claim (incidental use) and dismissed copyright claim for failure to plead recoverable damages/profits |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must contain more than labels and conclusions)
- Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (distinguishing active content development from neutral tools)
- Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (rejecting "entire website" liability theory under § 230)
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (notice of unlawfulness does not negate § 230 immunity)
- Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) (limits on an "encouragement" test for development)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (§ 230 can support early dismissal)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (copyright registration and remedies)
- On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001) (causal link required for recovery of infringer's profits)