Backpages Points Out That It Shouldn't Be Liable For Actions Of Its Users

from the again dept

Mon, Jan 10th 2011 10:07pm — Mike Masnick

This is a few weeks old, but Michael Scott points us to the story of how Backpages is asking a court to dismiss the lawsuit filed against it by a teen who was sold as a prostitute on the site. We covered the lawsuit when it was first filed, and had a rather frustrating discussion in the comments with people who simply couldn't understand the difference between blaming those actually responsible and blaming the tools those people used. We've discussed how the attempts to blame tool providers often helps those who are involved in child trafficking. It attacks the sites that work with law enforcement and help them identify those actually responsible, and instead drives traffickers to seek out other sites that don't work with law enforcement. In this case, the teen tries to claim that Backpages (owned by Village Voice Media) isn't protected by Section 230 because it "helped develop the ads":

"The website is a highly tuned marketing site with search tools, adult sex focused categories, and directions and features offered regarding how to increase the impact of your ads for a fee," M.A. argues. "Defendants advertise its website to increase page views of the ads; defendants removes spam from its website to increase page views of placed ad," M.A. adds. "All of these acts make defendants the creators and developers of the posted advertisements."

I don't see how any of those things overrides Section 230 safe harbors. It seems like a huge stretch to claim that advertising your service somehow makes you responsible for the content and the uses. Also, the fact that the site removes spam is totally meaningless, as the various Section 230 cases have shown time and time again that removing other content does not remove Section 230 safe harbors (if it did, no one would ever remove anything). Still, given the highly emotionally charged nature of this case, it wouldn't surprise me if a court ruled the other way, though the end result of that would be quite damaging -- especially to the people who many think this lawsuit is designed to protect.

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Filed Under: liability, section 230
Companies: backpages, village voice

31 Comments

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Anonymous Coward, 10 Jan 2011 @ 11:30pm

Let's take a step back for a moment, breathe deeply, and think about this logiZOMG THINK OF THE CHILDREN
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- The eejit (profile), 11 Jan 2011 @ 2:07am
  
  Re:
  See, THINK OF THE CHILDREN! is one of the most vitriolic logical fallacies ever.
  
  Because it assumes that children cannot think for themselves. This is incorrect, and that fact that people do things 'for the children' in order to 'protect them from harm'. You cannot now, nor have you ever been able to, protect them from themselves.
  
  By all means, take it into account; just don't use that as the sole reason for legislating.
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Anonymous Coward, 11 Jan 2011 @ 1:06am

It's a little known fact, but prior to the Internet there was no such think as slavery, prostitution or child trafficking.
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Anonymous Coward, 11 Jan 2011 @ 4:56am

The lawyers made it pretty clear: Backpages setup their site specifically to assure that users could obtain illegal services. Further, because it is "ads for a fee", they are clearly aware of the content and participate in the creation, which nullifies any Section 230 protections, as they are not just an innocent host, they are an active participant.

It's a pretty clear case.
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- Jay (profile), 11 Jan 2011 @ 5:08am
  
  Re:
  A clear case of what? They have ads, they have customers. Out of ALL the content on their site, you think that they can be responsible for what others do on their site?
  
  It's like trying to go after a NY hammer company for the murder a California resident. It makes no sense to go after the tools and not the ones that have the intent.
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  - Anonymous Coward, 11 Jan 2011 @ 7:38am
    
    Re: Re:
    Jay, you failed reading again. Backpages helped to write some of the ads, which are very explicit. They are aware of the business they are in, and they know that the live off the avails of prostitution, which is illegal.
    
    They were active participants, not passive hosts. They were also very aware of what was on their site, and chose not to remove it. Section 230 means nothing at that point.
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    - Qritiqal (profile), 19 Jan 2011 @ 6:12am
      
      Re: Re: Re:
      Actually, one cannot ASSUME the illegality of any of the postings on backpage. I'm just guessing you haven't looked at any of the postings. While they are highly suggestive of the services you might be able to receive, they are also very clearly not offering anything illegal (not explicitly, at least). Also, they are CERTAINLY not implying that you would be able to obtain the services of minors.
      
      More specifically, this lawsuit is about the forced prostitution of a minor. I believe we already have laws making every aspect of that illegal.
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- Anonymous Coward, 11 Jan 2011 @ 5:08am
  
  Re:
  Yeah, that's just what an iptard would say.
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jsl4980 (profile), 11 Jan 2011 @ 6:19am

So let say a criminal writes a ransom letter with a Bic pen, should Bic get sued for the actions of its user?

Why do old people (judges, lawyers, politicians) not get it when it comes to the interwebs?
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- Chuck Norris' Enemy (deceased) (profile), 11 Jan 2011 @ 6:45am
  
  Re:
  So let say a criminal writes a ransom letter with a Bic pen, should Bic get sued for the actions of its user?
  
  Not only that, the Bic pen should stop dispensing ink when it knows that the handler is writing a ransom note and not his grocery list.
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  - Chad, 11 Jan 2011 @ 7:45am
    
    Re: Re:
    If Bic pen sold pens specifically for the ransom letter writing clientele, then perhaps they would be liable for actions taken, but this reminds me of the big bad gun debate where it's not guns that kill people, it's people who kill people. Don't sue a gun company for what you do with their product, because it's not the products fault you used it for bad.
    
    In this case, it's don't sue a _website_ for what people do with the product. However, when your product specifically targets people who engage in illicit activities, and you're aware of their purpose on the site through the fees you charge, if we go back to the gun example, it's almost as if a gun company were to not only provide you the gun, but also give you a license to kill.
    
    It's not the product that people should be protecting, it's the creators of the site giving the users a license to do whatever they want with it who should be put under the spotlight. Any website under bad management can be victim to the exact same problem. The onus is on the website's management to fix these problems before and after they happen, not support them.
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- Chuck Norris' Enemy (deceased) (profile), 11 Jan 2011 @ 6:47am
  
  Re:
  So let say a criminal writes a ransom letter with a Bic pen, should Bic get sued for the actions of its user?
  
  Not only that...the Bic pen should stop dispensing ink when it knows that the handler is writing a ransom note and not his grocery list!
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  - Chuck Norris' Enemy (deceased) (profile), 11 Jan 2011 @ 6:50am
    
    Re: Re:
    Double post apology. The page only loaded halfway and froze after the first submit. So reluctantly I pressed submit again knowing I may be making a woeful mistake. =]
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- YourkiddingRight, 11 Jan 2011 @ 8:30am
  
  Re:
  No, it would be comparable to a criminal writing a ransom letter with a Bic pen and then Bic fixing the errors and making it more of an attention getting ransom letter. Maybe you young people (i am 29) should stop and think, well at all, things through. What am I saying you are still in the phase of your life where no one else knows anything but you.
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  - Anonymous Coward, 11 Jan 2011 @ 9:13am
    
    Re: Re:
    Has it been definitively proven that the website knew the contents of the ad? Until it has been, you young people (yes, YOU) should settle down and stop tossing BS.
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    - Anonymous Coward, 11 Jan 2011 @ 2:32pm
      
      Re: Re: Re:
      One only has to look at Backpage to know there are adult ads. In fact, they have categories for them (and even review images). Backpage is completely, totally aware of what is in their adult listings.
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  - doughless (profile), 11 Jan 2011 @ 9:57am
    
    Re: Re:
    Holy crap, Grandpa, you're already 29?! I'm surprised you still have the strength at your age to yell at the kids to get off your lawn.
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  - Gwiz (profile), 11 Jan 2011 @ 11:05am
    
    Re: Re:
    Maybe you young people (i am 29) should stop and think, well at all, things through.
    
    Maybe you should also think things through. You seem to think that the demographic of this site is 15-25 year olds. I believe it to be somewhat older based on the thought out, adult comments usually posted here.
    
    I, for one, am quickly approaching a half century on this planet.
    
    Now, get off my damn lawn!
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    - Anonymous Coward, 11 Jan 2011 @ 2:34pm
      
      Re: Re: Re:
      You are a rarity. What public stats I can find for TD shows that the vast majority of the readers are male, under 30, uiversity educated or going to university, with generally low incomes.
      
      It's sort of funny to watch them go.
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      - vivaelamor (profile), 11 Jan 2011 @ 3:30pm
        
        Re: Re: Re: Re:
        "You are a rarity. What public stats I can find for TD shows that the vast majority of the readers are male, under 30, uiversity educated or going to university, with generally low incomes."
        
        What stats would those be? I'm not suggesting they can't be true (I'm in my mid 20's), but I tend to be curious about statistics.
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        Anonymous Coward, 11 Jan 2011 @ 7:59pm
        
        Re: Re: Re: Re: Re:
        You can look at public things like quantcast, you can also look at somewhat more private information available through advertising networks and such. Quantcast suggests and even spread from teen to 50, mostly male, mostly white, mostly educated, and an pretty big tendancy to either making a ton of money or making nothing (not much middle class). Other numbers I have seen (but available to potential advertisers show many more under 25s in the crowd. Tons of drive by users who get lead in by keywords and then don't stay for the rest of the site.
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      - Anonymous Coward, 11 Jan 2011 @ 8:27pm
        
        Re: Re: Re: Re:
        "You are a rarity. What public stats I can find for TD shows that the vast majority of the readers are male, under 30, uiversity educated or going to university, with generally low incomes."
        You didn't read the Quantcast stats very carefully. Your statement is quite inaccurate
        
        57% of US Techdirt readers are 35 or older, and 26% are over 50.
        (More than 80% of Techdirt readers are from the US.)
        
        TD Reader Income:
        0-30K -- 23%.
        30-60K -- 25%.
        60-100K -- 20%.
        100K+ -- 32%.
        
        That looks like a broad income distribution skewed toward above average.
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        Anonymous Coward, 11 Jan 2011 @ 8:42pm
        
        Re: Re: Re: Re: Re:
        Now that I think about it---
        The observation that you were so sloppy with published statistical facts which happen to be readily available for all of us to read...> makes me wonder what other "facts" you have been sloppy with.
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        vivaelamor (profile), 15 Jan 2011 @ 9:08am
        
        Re: Re: Re: Re: Re:
        "You didn't read the Quantcast stats very carefully. Your statement is quite inaccurate"
        
        Even though I'm in the claimed demographic I don't show up on those stats because my browser is set with a whitelist policy for off site requests. Quantcast definitely didn't make the list. Tbh, I'm as much interested in their methodology as the numbers. I don't hold much faith in Quantcast's ability to do statistics (however much you'd think their livelihood depends on it).
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- Qritiqal (profile), 19 Jan 2011 @ 6:23am
  
  Re:
  I like to think we should sue God for making children age normally and not causing them to be 18 years old immediately after birth. Oh, and for not causing IPtards' testicles to fall off at birth thus preventing their propagation.
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  - Qritiqal (profile), 19 Jan 2011 @ 6:24am
    
    Re: Re:
    I apologize to any female IPtards for assuming that all IPtards are male, but I believe I'm complimenting females by doing so.
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Paul Keating, 11 Jan 2011 @ 7:34am

Who is to Blame
I see no difference between what is quoted as the allegation and the type of service I used to get when calling up to order a Yellow Pages or Classified Advert (remember those days or am I dating myself). Those at the other end of the phone were all to helpful in formulating the text, suggesting terms, suggesting placement, size, etc. I cannot recall ever seeing a suit against the Yellow Pages or the local newspaper for claims arising from the eventual interaction between the "victim" and the actual advertiser.

However, at the complaint stage, the court is allowed to ONLY consider the allegations and MUST assume that they are true (unless clearly not - e.g. allegations that the world is flat). The court is not permitted to exercise discretion, to interpret or to determine if something can be proven or not.

PRK
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- Anonymous Coward, 11 Jan 2011 @ 9:22am
  
  Re: Who is to Blame
  Just try to call up your local yellow pages and to try place an ad like this (completely with near nude photos):
  
  MY NAME IS MY LEILA MY PIX ARE 100% REAL I AM READY TO SATISFY YOUR EVERY
  
  DESIRE MY LOOKS AND PERSONALITY ARE JUST WHAT YOU ARE LOOKING FOR
  
  MY UNIQUE DESIRE WILL DRIVE YOU INSANE I HAVE A HARD BODY
  
  I AM HOT AND READY FOR YOU TO ENJOY! I AM OPEN 2 ANY FANTASY YOU HAVE I AM FULL AND WILL EXPLORE ANY FETISH YOU HAVE I AM OPEN TO ANY IDEAS!!
  
  PLEASE FEEL FREE TO CONTACT ME WITH ANY QUESTIONS YOU HAVE ABOUT WHAT
  
  MY SERVICES INCLUDE MY PICTURE IS 10O% REAL
  I WILL SHOW YOU THE TIME OF YOUR LIFE OR YOUR MONEY BACK GUARANTEED
  
  I AM LOCATED IN A VERY PRIVATE UPSCALE LOFT APARTMENT NEAR THE NY STOCK EXCHANGE
  
  (taken from today's backpage new york)
  
  Yellow pages would look at you like you grew an extra eyeball and tell you to get bent.
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  - Qritiqal (profile), 19 Jan 2011 @ 6:25am
    
    Re: Re: Who is to Blame
    Please explain how this ad is illegal?
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Anonymous Coward, 11 Jan 2011 @ 11:01am

Actually it like writing a ransom note using a word processor and it makes corrections and 'enhancements' to your words...Hey, mabe they should include MicroSoof in the lawsuit
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AutoTweet (profile), 16 Jan 2011 @ 12:01pm

I don't see how a website should be held liable for the actions of its users. Posts are instant and available on millions of websites accessible to billions of people. Imagine the trouble if a lawsuit like that was successful.
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