Sex-trafficking victims brought suit against Salesforce under the Trafficking Victims Protection Act and Texas State Law for knowingly benefiting from participation in sex-trafficking venture by providing cloud-based software tools and support services to Backpage.com.  The District Court rejected Salesforce’s claim to immunity under Section 230 of the Communications Decency Act, and the U.S. Fifth Circuit affirmed.

“Section 230 provides immunity when the defendant is (1) the provider or user of an interactive computer service and (2) treated as the publisher or speaker of third-party content. Salesforce argues that section 230 cloaks it with immunity because Plaintiffs’ claims ‘necessarily’ treat it as the publisher or speaker of advertisements posted on Backpage. We disagree. The text of section 230, our precedent, and the precedent of our sister circuits uniformly reject the argument Salesforce advances. Instead, the proper standard is whether the duty the defendant allegedly violated derives from their status as a publisher or speaker or requires the exercise of functions traditionally associated with publication. Under this standard, Plaintiffs’ claims do not treat Salesforce as a publisher or speaker of third-party content….

“Our precedent aligns with this common-sense reading of section 230’s text. In Doe v. MySpace, we adopted a functional, claims-analysis approach to the question of whether a plaintiff’s claim treats a defendant as a publisher or speaker of third-party content…. In contrast to our claims-analysis approach, we have rejected a mechanical, but-for reading of section 230. A but-for test that asks whether third-party speech lies anywhere in the chain of causation leading to the alleged harm would expand section-230 immunity beyond the statute’s text. Such a test would align more with a statute that read ‘shall be held liable for conduct involving third-party speech.’ But that is not the statute Congress enacted….

“The heart of Salesforce’s argument is that section 230 grants Salesforce broad immunity in all cases arising from the publication of third-party content.  According to Salesforce, because the only link between Salesforce and Plaintiffs’ sex-trafficking-related harms is the illicit ads their traffickers posted on Backpage, Plaintiffs necessarily seek to treat Salesforce as the publisher or speaker of those ads…. First, like the but-for analysis, the only-link theory would expand the grant of immunity beyond section 230’s text. Under this theory, any time third-party content is the only link in the chain of causation, section 230 provides immunity—encompassing vastly more than claims that seek to treat a defendant as a publisher or speaker of third-party content…. Second, the only-link theory cannot stand on its own two feet. According to Salesforce, if the only link between a plaintiff’s harm and the defendant is third-party content, then section 230 bars the claims. On that logic, if there were some conduct by a defendant in addition to the third-party content, section 230 would not bar the claims. But what if the defendant’s conduct fell squarely within section 230’s text? For example, publishing defamatory third-party content. To say that in such situations section 230 would not provide immunity taxes the credulity of the credulous. But Salesforce’s only-link theory, taken to its logical end, would require that anomaly. Avoiding that anomaly requires a focus on the type of conduct involved. In other words, it requires an analysis of whether the duty the defendant allegedly violated derives from their status as a publisher or speaker or requires the exercise of functions traditionally associated with publication.”

 

A.B. v. Salesforce, Inc., No.23-20604, 2024 WL 5163222 (5th Cir. Dec. 19, 2024).