“It’s Y2K Pimpin” (Online Sex Trafficking)

As I discussed in my last blog, service providers such as Craigslist are protected from liability for content posted by its users.  But…if the service provider knew what was actually going on and did nothing to stop it, immunity can be waived.

In September, a different type of lawsuit was filed.  M.A., a minor victim of sex trafficking, filed a lawsuit against Village Voice Media (doing business as backpage.com) for knowingly allowing her pimp to post ads for her “services” on the popular website www.backpage.com.  This is the first time a private individual has ever sued a website publisher over sex ads.  In the complaint, M.A. argues that Village Voice should not be granted immunity under Section 230 of the Communications Decency Act; which, as you know, broadly protects interactive computer services from liability for content posted by its users.

M.A. ran away from home and was found by Latasha McFarland when she was 14 years old.  McFarland began pimping her out for $100 per sex act by posting ads containing pornographic photos of M.A. on backpage.com in the personals section for those seeking sex.  Earlier this year, McFarland pled guilty to photographing M.A. in pornographic poses, posting child pornography on backpage.com, paying the website for the postings, transporting M.A. for the purpose of pimping her out for sex, and collecting money for her sexual services.

M.A. alleges that the defendant aided and abetted McFarland because the defendant had a
“strong suspicion that the aforementioned crimes were being committed yet was so indifferent that it failed to investigate for fear of what it would learn; defendant had a desire that these posters accomplished their nefarious illegal prostitution activities so that the posters would return to the website and pay for more posting.  Therefore, actual knowledge of the specific crime is unnecessary based upon the ‘ostrich rule’ which allows an inference of knowledge in that at best, defendant was deliberately ignorant of the specific crimes that were being committed on its website.”

She also argues that “Pursuant to 47 U.S.C. Section 230, no immunity attaches in favor of Defendant as Defendant has aided and abetted crimes against a child under 18 U.S.C. Sections 2251, 2252, 2252A, 2421, 2422, 2423, relating to maintaining and operating backpage.com which is a facilitator of child pornography and facilitator of child prostitution.”

To see the actual complaint, click HERE.

It is my understanding that the “ostrich rule,” that M.A. based her argument on, is not one that is really used in civil matters.  Instead, it is a federal jury instruction that is given in criminal cases where defendants deliberately turn their heads to the truth.  If a criminal defendant claims that he lacks knowledge of the crime, but there is some evidence that the defendant deliberately chose to remain ignorant in order to avoid confirmation, the ostrich instruction may be given.  It is also referred to as a “willful blindness” or “deliberate indifference” instruction.

On July 26, 2010, the 7th Circuit Court of Appeals addressed the issue of whether the instruction was appropriate in United States v. Mark Ciesiolka, a federal online solicitation case filed under §2422(b).  The defendant argued that the ostrich instruction relieved the government of its burden to prove beyond a reasonable doubt that the defendant had knowledge.  He also argued that the instruction allowed the jury to find him guilty based merely on suspicion of, and indifference to, the girl being underage.

At the close of the defendant’s trial, the judge instructed the jury:

When the word “knowingly” is used in these instructions, it means that the Defendant realized what he was doing and was aware of the nature of his conduct, and did not act through ignorance, mistake or accident. Knowledge may be proved by the Defendant’s conduct, and by all the facts and circumstances surrounding the case.

You may infer knowledge from a combination of suspicion and indifference to the truth, if you find that a person has a strong suspicion that things were not as they seemed or that someone had withheld some important facts, yet shut his eyes for fear of what he would learn, you may conclude that he acted knowingly, as I have used that word. You may not conclude that the defendant had knowledge if he were merely negligent in not discovering the truth.

The 7th Circuit noted that it has only approved the instruction in limited circumstances because the instructions can relieve the government of its burden to prove all elements of an offense beyond a reasonable doubt.  The instruction is appropriately given to the jury when “(1) a defendant claims a lack of guilty knowledge and (2) the government presents evidence that suggests that the defendant deliberately avoided the truth.”

The court held that if the district court gives an ostrich instruction, it “must take great care to ensure that the jury understands that the instruction should not be applied to issues as to which a defendant’s knowledge of the real truth would actually exonerate him.”  The court found that it was error to give the ostrich instruction because the main issue in dispute fit that description.

Unlike Craigslist, which was aware of the problem and took measures to stop it, such as the manual review of all ads placed in the adult services section prior to its removal, “backpage.com is one of those sites that has an ‘anything goes reputation.’”  That being said, it is not surprising to discover that ads for sex with minors were being posted on the site…although this doesn’t automatically mean that Village Voice actually knew what was going on.

There is no evidence that Backpage.com was aware of what was going on and chose to ignore it.  In fact, Backpage.com’s reputation might even help them with their defense.  Since they are known as an “anything goes” website, then why would they bother to regulate or look at what was actually being posted…unless users were complaining or reporting ads – if they even have that policy, similar to Craigslist’s “flagging system.”

So, if the “ostrich rule” can be applied to the lawsuit filed against Village Voice, and Village Voice claims a lack of guilty knowledge, then the plaintiff, M.A. must introduce sufficient evidence that Village Voice remained deliberate ignorant.  In other words, if M.A. wants the site’s Section 230 immunity waived, she’ll likely have to produce some real evidence that Village Voice actually knew that the photos were of a minor, knew the advertised services were illegal, and yet still did nothing about it, essentially sticking its head in the sand.

M.A.’s argument is similar to South Carolina Attorney General, Henry McMaster’s, when he unconstitutionally threatened Craigslist in 2009, likening Craigslist to “a hotel or motel owner that knows prostitution is going on on their premises and fails to do anything about it especially after having been told.”  The problem with McMaster’s argument, and likely with M.A.’s, is that the allegations are “far too vague.”  There is nothing in the complaint to suggest that Backpage.com “specifically induced McFarland – or any other pimp, for that matter – to ‘post any particular listing.’”

Backpage.com’s terms of use prohibit:

  • Posting any solicitation directly or in “coded” fashion for any illegal service exchanging sexual favors for money or other valuable consideration
  • Posting any material on the Site that exploits minors in any way.

Because of these terms of use, Village Voice may be able to defend the suit by following the 7th Circuit’s decision in Chicago Lawyers Committee v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008). In that case, the 7th U.S. Circuit Court of Appeals said that “Craigslist could not be sued for ‘causing’ ads to be posted that violate housing discrimination laws.  ‘Causation…must refer to causing a particular statement to be made.”  The court continued, “Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination.”

Nothing in the service backpage.com offers induces anyone to post any particular listing. In fact, the terms of use prohibit posting ads such as the ones posted by McFarland.  Therefore, it could be argued that backpage.com cannot be sued for “causing,” or inducing the ads to be posted.

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~ by natalielaw on December 7, 2010.

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