Texas Supreme Court Says Facebook Can Be Held Liable For Child Sex Trafficking On Its Platform

June 28, 2021

By a Biometrica staffer

In a move likely may have a far-reaching ripple effect, on Friday, June 25, the Texas Supreme Court ruled that Facebook can be held responsible for its users engaging in illegal sex trafficking activities on the site, regardless of protections offered to the company in regards to free speech rights, saying that the internet is not a “lawless no-man’s-land.”

The three plaintiffs in the case sued the tech giant in 2018, alleging that when they were teenagers, adult men used Facebook and Instagram as a way to contact them, groom them, and then lure them into sex work. The victims — two of whom were 15 years old and one of whom was 14 at the time they were targeted — told the court that they were prostituted, raped, and beaten by a series of “clients.”

The charges filed included negligence and product liability. The defense said that Facebook provided a “point of first contact” between traffickers and young, vulnerable victims. It also alleged that the company profits from remaining silent, because it does not want to waste potential advertising space on public service announcements, cautions, or warnings directed at its 2 billion-plus user base. The plaintiffs also said that the platform lent child predators and traffickers credibility, and that Facebook gave them “an unrestricted platform to stalk, exploit, recruit, groom, and extort children into the sex trade.”

In response, Facebook had argued for the case to be dismissed as it is shielded from liability by Section 230 of the Communications Decency Act of 1996 (CDA). In its ruling, the Texas Supreme Court rejected this claim and said the company must face the victims in court. 

The extremely consequential Section 230 has long protected internet companies from litigation, arguing that as online platforms do not own or publish the content on their sites, they cannot be held liable — in criminal or civil courts — for what its users do, including in regards to hate speech and illegal activities like child trafficking and prostitution.

In 2018, the U.S. Congress, on bipartisan lines, passed the Fight Online Sex Trafficking Act (FOSTA), which became law in April that year. FOSTA — and its Senate counterpart, the Stop Enabling Sex Traffickers Act (SESTA) — was designed to close the Section 230 loophole by making companies liable if they knowingly facilitate, assist, or support in any way those who violate federal and state anti-sex trafficking laws. This puts the onus on the companies to crack down on any trafficking activity on their platforms.

In the Texas ruling last week, Justice Blacklock cited FOSTA-SESTA in disqualifying Facebook’s primary argument of its immunity from litigation. The opinion said that Section 230 prevents companies from being held accountable for the “words or actions of their users,” but does not preclude them being liable for “their own misdeeds,” especially in cases of human trafficking. Justice Blacklock added that the court does not believe that states are “powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking.”

According to a lead lawyer for the plaintiffs, this is the first time that Facebook has cited its immunity under Section 230 and then lost.

According to the Human Trafficking Institute, between 2000 and 2020, 30% of human trafficking victims were recruited online, while 81% of criminal human trafficking cases involved online solicitation. Facebook, Instagram, and Snapchat were the largest targets for traffickers, with 59% of online victim recruitment taking place on Facebook.

Just last week, the U.S. Government Accountability Office (GAO) released an audit of FOSTA and how it had been used in prosecuting internet companies for the trafficking crimes committed on their platforms. The GAO found that the law had barely been used since it went into effect in April 2018, despite the high hopes proponents had for its power and scope in deterring and apprehending human traffickers.

This ruling from the Supreme Court in Texas, however, could mark a changing point in the ongoing struggle between those advocating for for stricter anti-trafficking regulations, and those arguing that Section 230 was crucial in protecting free speech and shaping the current avatar of the internet.

Some legal experts said that though this verdict would only set precedent in Texas, it being a first-of-its-kind could lead to it being cited in more cases in the future. Further, Facebook has the right to appeal this decision to the U.S. Supreme Court, but in doing so could risk giving SCOTUS the opportunity to restrict Section 230 more than Congress did in 2018, which could seriously impact all internet companies.

If Facebook is found to be liable for enabling sex trafficking in this face, it could be a signal for other online platforms to review and reform their policies to make it safer for children online. It could also lead the companies to be stricter against unrestricted, unregulated free speech, by highlighting the risk of being sued and the financial consequences of that.

In response to the Texas verdict, Facebook said that it is deliberating its next move, adding, “Sex trafficking is abhorrent and not allowed on Facebook. We will continue our fight against the spread of this content and the predators who engage in it.”