The recently passed bill creates civil liability for social media companies that benefit from a human trafficker’s online media presence if they “should have known” that their platform was being utilized for such exploitation.
A social media account monitoring system modeled after an effective anti-human trafficking compliance program is paramount to avoid potential liability based on a company’s failure to remove culpable accounts.
The lack of an anti-human trafficking compliance program may make it extremely difficult to overcome a suggestion that a social media company “should have known” that a user was abusing its platform.
On March 21, 2018, following the overwhelming support received in the U.S. House of Representatives, the U.S. Senate almost unanimously passed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a historic piece of legislation that amended the Communications Decency Act of 1996 (Decency Act) to clarify that the Decency Act was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and human trafficking. Importantly, in doing so, FOSTA added a new provision to the Decency Act depriving online platforms of long-standing legal immunity in connection with certain illegal content posted by their users.
Notably, in addition to removing legal barriers to the enforcement of criminal laws, the new bill finally allows victims of human trafficking to bring certain civil claims against social media companies pursuant to the Victims of Trafficking and Violence Protection Act (TVPA), a federal law that creates significant corporate liability for entities that benefit from human trafficking if they know or “should have known” about the exploitation.
Immunity under the Decency Act
Historically, Section 230 of the Decency Act has granted general immunity from civil lawsuits to providers and users of an “interactive computer service” that host or republish one’s speech. Thus, online services such as social media platforms that published third-party content, including posts and photos, have been mostly shielded from liability for the content or the information that was posted by users of their platforms. However, with a historic amendment to the Decency Act, the newly enacted FOSTA has added a new subparagraph to Section 230 providing, in relevant part, that nothing in the Decency Act may be construed to limit any civil action brought under the TVPA if the conduct underlying the claim constitutes sex trafficking.
Corporate Liability for Online Social Media Companies
As previously noted, the TVPA is a federal law that grants a private right of action to a victim of human trafficking. Enacted in 2000 and subsequently revised in 2003, 2005, 2008 and 2013, the TVPA is intended to combat trafficking in persons, especially into the sex trade, slavery and involuntary servitude. While trafficking victims have generally invoked the TVPA to seek damages from their traffickers, the statute also provides a cause of action to bring claims against third parties, such as businesses. Indeed, under the TVPA, a victim may bring an action against “whoever knowingly benefits . . . from participation in a venture that person knew or should have known has engaged in” trafficking (emphasis added). Notably, the TVPA specifically allows courts to award damages as well as attorney’s fees to the victim and, according to certain Circuit Courts, punitive damages. Because such horrific crimes generally have significant and lifelong effects on their victims, defendants in TVPA actions are likely to face damages in the millions of dollars, not to mention significant public relations costs and remediation expenses.
Thus, for instance, a social media platform that received direct payments, revenue-generating online traffic or other benefits from an online profile or user account advertising or otherwise promoting sex trafficking may be exposed to corporate liability if the company should have known that its platform or website was being used to perpetrate sexual exploitation or trafficking of minors (for instance, because of the nature of the user’s posts or photos).
Anti-Human Trafficking Compliance and Online Account Monitoring
As social media companies may be exposed to significant corporate liability if they “should have known” that a user was relying on the companies’ online platforms to advertise or promote sexual exploitation, it is paramount that they implement effective anti-human trafficking compliance programs as well as expansive online account monitoring operations. Indeed, the lack of an anti-human trafficking compliance program may make it extremely difficult to overcome a suggestion that a social media company “should have known” that a user was abusing its platform to promote sex trafficking where the user posted online content which included language or photos indicating trafficking, and the company either did not recognize these signs as such or failed to remove the account at issue, thereby allowing it to “benefit” unwittingly from the crime. A system of anti-human trafficking compliance and online account monitoring would effectively address these concerns by establishing internal policies and procedures to identify signs of sex exploitation and, one might hope, even prevent the crime by removing illegal content from the online platform and reporting the violation to the authorities.
In sum, to avoid liability and unintentionally contributing to human trafficking while mitigating TVPA’s potentially significant impact on corporate assets and operations, social media companies should consider incorporating anti-human trafficking compliance into their own compliance framework and conduct effective online account monitoring on their platforms. Doing so is particularly critical for companies operating social media platforms that might benefit from user account activity, for instance, through online ads as well as monetary or other benefits related to online traffic on or usage of their platform.
Human trafficking is a horrific form of modern-day slavery, a multi-billion dollar criminal industry where traffickers use force, fraud or coercion to control their victims. Proactively engaging in anti-human trafficking compliance is thus necessary from both corporate social responsibility and risk management perspectives. Indeed, not only is it an effective way to play a significant role in the fight against exploitation, but it also reduces business risk by mitigating a company’s exposure to potential corporate liability.