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Backpage.com Is Not Liable for Sex Trafficking, 1st Circ. Rules

By Jonathan R. Tung, Esq. on March 21, 2016 | Last updated on March 21, 2019

Backpage.com is not liable for alleged sex trafficking cases that took place on its site after Craigslist perspicaciously shut down the "adult" section of its site, according to the First Circuit.

The decision of the circuit court should come as relief to websites which look to shield themselves from liability from the ribald and illicit acts of its users.

Sensing a Vacuum

This is not the first time Backpage has been in court. The site first really came into prominence when it essentially became the go-to site for adult classified ads when Craigslist shut down its "adult" section after being besieged by lawsuits alleging Section 230 violations of the Communications Decency Act (CDA), aka the "Great Internet Sex Panic of 1995." When Craigslist decided that its adult site was more trouble than it was worth, it shut that section of the site down.

But people have to have their access to vice and ribald pastimes, so Backpage, sensing a vacuum in the demand for such things, essentially took over the market from then on. Backpage, too, had to sit in the defendant's seat over allegations that it had played "a substantial role" in developing the content of the advertisements posted by traffickers who had abused sex trafficking victims.

"Speculative Inference Upon Speculative Inference"

That "substantial role" fell short in the opinion of the First Circuit which reviewed the cases against Backpage. The specific issue in the case revolved around the application of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

The law states that anyone "who knowingly benefits," or otherwise should have known that a venture amounting to the engagement of sex trafficking can be held liable under the law. The legal issue at bar is whether or not Backpage, as a platform, can be held liable "as a publisher" for content posted by its users. Plaintiffs argued that Backpage essentially should not be considered exempt under the law because it allows users to post content anonymously, making it somewhat different than a traditional publishing platform.

But the First Circuit rejected this reading of the CDA because previous caselaw had fit the case of Backpage perfectly, clearly establishing it as a publisher protected by sec. 230. Plaintiffs argued that Backpage was not only an enabler, but actually willingly engaged in attempts to block attempts to combat the site's sex trafficking which would fall out of 230 protection again.

But the circuit remained unconvinced. "This causal chain [argued by plaintiffs] is shot through with conjecture: it pyramids speculative inference upon speculative inference ... When all is said and done, it is apparent that the attenuated causal chain proposed by the appellants is forged entirely out of surmise."

Let's Not Blame the Tool; Blame the People

In a rather weird turn in the facts, one of the pictures posted on the site was of one of the victims -- but taken by herself. In her complaint, she alleged copyright infringement. It appeared to be tacked on at the last minute because the plaintiffs could feel that the case would not go well.

Some legal analysts have applauded the decision. The issue of human trafficking is not one that ought to be blamed on the tool of classified ads. The better policy would be to track down the people, not the tool.

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