Does the Communications Decency Act Protect Human Trafficking?

more+
less-

[author: Travis Crabtree]

http://www.emedialaw.com/files/2012/11/State-of-Texas.jpgThe State of Texas may find out and it may be more applicable to your site than you think.  In early filing for the 2013 legislative session, Democratic state Senator Leticia Van de Putte proposed a bill aimed at stopping at stopping human trafficking.  The entire text is here.

It allows for human trafficking victims to bring civil suits against the wrongdoers including websites, that allow advertisements promoting the compelled sex trade.  Specifically, it states a website can be liable if it:

publishes an advertisement that the [website] knows or reasonably should know constitutes promotion of  prostitution or aggravated prostitution and the publication of the advertisement results in compelling prostitution with respect to the victim. 

The Bill and Section 230

I’ll parse through the language below, but first I want to discuss how this law may interact with Section 230 of the Communications Decency Act.  Section 230 provides the operators of websites with immunity from any suits caused by the content created by others.  It states:

no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It usually shields sites from defamation claims, but it has been applied to almost all claims that stem from the content  created by others.

So what happens if a website simply allows anyone to create ads, specifically adult services ads without having any say as to the content?  Would the CDA trump this Texas proposal?  Online adult listing companies have already prevailed on several related suits in MissouriWashington and Illinois.  If Texas passes the law, it is likely to legislate its way into a lawsuit. 

Numerous local and state officials have attempted to crack down on at least one known adult-listing service without much success.  The passage of the law in Texas could be a symbolic statement increasing the fervor for Congress to make changes to the CDA.  The CDA already expressly excludes liability for federal criminal laws including child pornography.  Thus, Congress could carve out a similar exemption as it relates to human trafficking.

The Language of the Texas Bill 

If the proposed law were to survive CDA and other challenges, it could present some interesting trial issues.  First, you have to parse through the definitions.  “Promotion of prostitution” is essentially pimping for one person.  “Aggravated promotion of prostitution” is running a pimping enterprise of more than one prostitute.  So, to be liable, the media company would have to know, or reasonably show know, that the advertisement is for promotion of prostitution (i.e., pimping). 

A successful plaintiff would not have to show, however, that the website operator knew the pimp was engaging in “compelling prostitution.”  Compelled prostitution means that through force or threat of force, you force someone to commit prostitution or cause a minor to commit prostitution–the human trafficking aspect.

While crass, the law essentially means that an advertisement for a “reputable pimp” who does not engage in “compelling prostitution” would be OK.  But, if you think that the advertising pimp is “reputable” and they turn out not to be because they force people or use minors, the website would be in trouble. 

Also interesting is that if you are the actual prostitute and you advertise, then the media company cannot be held liable because you are not engaging in “promotion of prostitution.”   

How would this apply to my site?

You may be thinking that I don’t run an adult classified listing site, so while interesting, I don’t care.  If you run any interactive site that allows for user generated content or messages, you may want to think again.  Under this provision, “advertisement” is defined to include communications that promote a commercial service on websites “operated for a commercial purpose.”  Read broadly, that could apply to every website that makes any money regardless of whether you accept classified listings or allow users to advertise, as we normally think of the term, on your site.  In other words, the “advertisement” that creates liability, could be a comment a user posted on your blog that makes some money.

So, if a pimp takes to Facebook and posts a free message promoting human trafficking, could Facebook be held liable?  Their liability would all come down to what did Facebook know or should it have known?

Human trafficking is a serious issue.  According to reports, adult classified that may involve adult trafficking is also serious business.  Without action from Congress, any efforts by Texas or other states to crack down on online advertising is likely to lead straight to the courthouse.