Facebook sought writs of mandamus from the Texas Supreme Court directing the dismissal of three lawsuits brought by plaintiffs alleging that they were the victims of sex trafficking who became entangled with their abusers through Facebook. In all three lawsuits, Facebook moved to dismiss all claims under Section 230 of the federal Communications Decency Act, which provides that “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.”
The Texas Supreme Court, granting the mandamus with respect to negligence and products liability claims, but denying with respect to the statutory claims, indicated that Section 230 did not “create a lawless no-man’s-land on the Internet” in which States are powerless to impose liability on websites that knowingly or intentionally participate in online human trafficking. “Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that Section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking. Congress recently amended Section 230 to indicate that civil liability may be imposed on websites that violate state and federal human-trafficking laws. Section 230, as amended, does not withdraw from the states the authority to protect their citizens from internet companies whose own actions – as opposed to those of their users – amount to knowing or intentional participation in human trafficking.”
Specifically, the plaintiffs sued Facebook under a Texas statute creating a civil cause of action against anyone “who intentionally or knowingly benefits from participating in a venture that traffics another person.” Tex. Civ. Prac. & Rem. Code §98.002(a). According to Plaintiffs, Facebook violated this statute through such acts and omissions as knowingly facilitating the sex trafficking of Plaintiffs and creating a breeding ground for sex traffickers to stalk and entrap survivors. “This distinction” the Texas Supreme Court held, “between passive acquiescence in the wrongdoing of others and affirmative acts encouraging the wrongdoing – is evident in Plaintiffs’ allegations, which we construe liberally at the Rule-91a stage. While many of Plaintiffs’ allegations accuse Facebook of failing to act as Plaintiffs believe it should have, the section 98.002 claims also allege overt acts by Facebook encouraging the use of its platforms for sex trafficking. For instance, the petitions state that Facebook ‘created a breeding ground for sex traffickers to stalk and entrap survivors’; that ‘Facebook knowingly aided, facilitated and assisted sex traffickers, including the sex traffickers who recruited Plaintiffs from Facebook’ and ‘knowingly benefitted’ from rendering such assistance; that ‘Facebook has assisted and facilitated the trafficking of Plaintiffs and other minors on Facebook’; and that Facebook ‘uses the detailed information it collects and buys on its users to direct users to persons they likely want to meet and, in doing so, facilitates human trafficking by identifying potential targets, like Plaintiffs, and connecting traffickers with those individuals.’ Read liberally in Plaintiffs’ favor, these statements may be taken as alleging affirmative acts by Facebook to encourage unlawful conduct on its platforms.”
At the same time, “the essence of Plaintiffs’ negligence, gross-negligence, negligent-undertaking, and products-liability claims is that, because Plaintiffs were users of Facebook or Instagram, the company owed them a duty to warn them or otherwise protect them against recruitment into sex trafficking by other users. Facebook violated that duty, Plaintiffs contend, by its failures to implement any safeguards to prevent adults from contacting minors, report suspicious messages, warn of the dangers posed by sex traffickers, or identify sex traffickers on its Platforms. Under the view of Section 230 adopted in every published decision of which we are aware, these claims treat Facebook as the publisher or speaker of third-party communication and are therefore barred. Plaintiffs argue that their common-law claims do not treat Facebook as a ‘publisher’ or ‘speaker’ because they do not seek to hold it liable for exercising any sort of editorial function over its users’ communications, but instead merely for its own failure to implement any measures to protect them from the dangers posed by its products. Yet this theory of liability, while phrased in terms of Facebook’s omissions, would in reality hold the company liable simply because it passively served as an intermediary for other parties’ injurious messages.”
In re Facebook, Inc., No.20-0434, 2021 WL 2603687 (Tex. June 25, 2021).