As Expected, Backpage Is Not Liable For Prostitution Ads

from the we-could-have-told-you-that dept

Fri, Aug 19th 2011 1:48pm — Mike Masnick

Last year, we wrote about a former child prostitute who sued Village Voice Media for its Backpage classified ads offerings, since this was a tool previously used to sell her. Now there has been a lot of controversy in the last couple of years (mainly from grandstanding politicians) about prostitution ads on Craigslist and Backpage. However, as has been pointed out over and over and over again, the liability belongs on the person actually committing the crime, not the service provider. And, in fact, the law, via Section 230 of the CDA gives service providers immunity.

Still, we were a little worried that since this case was highly emotionally charged, and involved a child prostitute, that the court might make a bad ruling. Instead, it appears that court has made a really strong and useful ruling explaining repeatedly why Backpage is not liable. The girl's lawyers basically tried every trick in the book to get around Section 230 immunity, but the court debunked each and every one. Many of the claims she made are the types of claims we see in the comments from people who don't understand safe harbors (like saying that you lose safe harbors if you make money). Eric Goldman, at the link above, walks one by one through each of the lawyer's attempts to get around Section 230, and explains why the judge rejected it. It's worth reading the whole thing, but here's a snippet:

Backpage allows keyword searches. Citing several cases, including Jurin and Rosetta Stone, the court says this is irrelevant.
Backpage created an adult category. The court cites Dart v. Craigslist in concluding this is irrelevant.
Backpage takes steps to increase its revenues. Backpage allegedly "tout[ed] its website as a 'highly tuned marketing site' and instruct[ed] posters of ads on how to best increase the impact of those ads." The court responds: "to find Backpage to be not immune from suit based on M.A.'s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to � 230's broad grant of immunity. This the Court may not do."
Backpage allegedly knew prostitution was advertised on the site. The court cites several cases for the proposition that knowledge is irrelevant to 230's immunity.

It's nice to see, yet again, a court recognize that liability should be properly applied, and we shouldn't blame 3rd party service providers for the actions of their users.

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Filed Under: ads, backpage, liability, prostitution, section 230
Companies: backpage, village voice

40 Comments

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fb39ca4 (profile), 19 Aug 2011 @ 1:50pm

That's a fair ruling. I'm glad the issue of child prostitution didn't twist it.
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blaktron (profile), 19 Aug 2011 @ 2:06pm

I hope that all this effort trying to charge a website didnt detract from efforts to charge the pedophiliac pimps that actually harmed her and society, but that would be naive to think that...
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Anonymous Coward, 19 Aug 2011 @ 2:13pm

Cue letters to the courts about "Not protecting the children"
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gorehound (profile), 19 Aug 2011 @ 2:21pm

Time to go hire a hooker for Friday Night.got to run and go on backpages now...............
see ya
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Anonymous Coward, 19 Aug 2011 @ 2:23pm

But how do you solve (or help solve) the problem if you can't limit it the channels through which the problem is spread? (This is a legitimate question trolls and fanboys, don't flame.)
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Anonymous Coward, 19 Aug 2011 @ 2:26pm

Re:
You don't limit the channels because that would take away tools for catching the criminals. They'll just move elsewhere. Since police know where they are posting, they can always watch for it and take down the actual pimps and prostitutes.
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Anonymous Coward, 19 Aug 2011 @ 2:32pm

Re:
With actual police work....
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:Lobo Santo (profile), 19 Aug 2011 @ 2:32pm

Re: Sociological Economics
People will always get what they want regardless of legality, cost, difficulty, or morality. If there is a demand for something within the populace, somebody will attempt to profit from meeting that demand.

Usually popular things which are illegal have no good reason for being illegal. (ie prostitution, marijuana, unlicensed hair-dressers) Enforcing such asinine laws is simply an unnecessary expense to be borne by the tax-payer. Given that anything in high enough demand will without doubt be partaken of, the only thing illegality throws in is violence (due to being unable to bring disagreements to the courts/police) and a lack of quality control--the "problem" will always be there.

The way to solve the problem is the legalize whatever it is and the regulate it in a rational manner.
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Anonymous Coward, 19 Aug 2011 @ 2:41pm

Response to: blaktron on Aug 19th, 2011 @ 2:06pm
The linked article says be pled guilty and is doing time. Sometimes things do work out like that.
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Anonymous Coward, 19 Aug 2011 @ 2:41pm

Re: Re: Sociological Economics
Except child prostitution
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Trerro, 19 Aug 2011 @ 2:44pm

Think about it in the real world for a second.
To put it in another, far less emotionally charged context, let's say we have an open market - lets use a flea market to get an real-world example of an open market. You pay a small fee, they assign you a booth or table, and you can sell whatever.

Now, let's say some guy is selling gadgets, where he has a few functional display models, while everything he actually sells is a broken wreck. There's a clear crime being committed here - fraud.

Would it make sense to sue the owners of the flea market because one of their vendors is a scammer? Of course not. The correct answer is, of course, arrest the guy selling the fraudulent merchandise.

That's also the answer to how you stop the crime - you arrest those actually responsible, not the venue they used they commit the crime.

Well, it's the exact same thing here. It's an online market rather than a physical one, and it's a heinous crime rather than basic fraud, but it's the exact same principle. The people running the market aren't responsible for what their vendors are selling, and if you want to stop the activity, you need to arrest those vendors, not merely kick them to a different venue.
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dwg, 19 Aug 2011 @ 3:29pm

Re: Think about it in the real world for a second.
That's the ticket. A legitimate business that happens to receive a small portion of its business from illicit activity that it, itself, has nothing to do with--think a hotel that occasionally has hookers as visitors--is not liable for crimes committed where it does nothing affirmative to help those crimes take place. On the other hand, a service that gets a majority of its business from illicit activity and has reason to know it--think a chemical-sales company that sells freon and notices that a few individuals buy 10 times the amount of its industrial clients and so is pretty obviously making meth; or a no-tell motel that caters almost exclusively to hookers--is liable. So...I visited backpage and I can buy cars or childcare, plug my band, look for antique chairs...and also browse personals that might very well be dodgy. So, I think backpage is the former hotel, not the latter freon salesman or roach motel.
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Martin Cohn (profile), 19 Aug 2011 @ 3:32pm

Logical ruling from a logical judge
Judge Carol Jackson is truly top flight. I had the privilege of presenting cases in front of her and she's strictly by the (law) book, without a personal or political agenda. Glad to see she came through again.
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Anonymous Coward, 19 Aug 2011 @ 3:43pm

Re: Re: Think about it in the real world for a second.
What if the portion of business from illicit activity is 50% of the total? At what level should the entire venue be shut down? Who should decide this level?
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Chosen Reject (profile), 19 Aug 2011 @ 4:19pm

Re: Re: Re: Think about it in the real world for a second.
I don't think it's so much a matter of percentage of total, but specific knowledge.

I'm sure every hotel owner knows that some prostitution is going on in their rooms and every chemical manufacturer/seller knows that some of their chemicals are going to be used for illegal purposes. None of that matters. On the other hand, some hotel owners know which of their customers are prostitutes or johns, and some chemical manufacturers/sellers know which of their customers use their products for illicit purposes. Those who know but do business with those customers anyway can be liable (certainly in addition to those who are actually committing the crime, not instead of).
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Anonymous Coward, 19 Aug 2011 @ 4:32pm

Re: Re: Re: Re: Think about it in the real world for a second.
You say, if the venue does business with a customer that they know are using their product for illicit purposes then they can be liable in addition. But what duty does the venue have to determine whether or not use of their product will be illicit? Is it a short skirt with an obvious age and looks difference (the hotel case)? Is it a pattern of infringement (ISP)? What duty does a consumer have to ensure those who use their open Wi-Fi are not infringing?
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NotMyRealName (profile), 19 Aug 2011 @ 4:48pm

Re: Re: Re: Sociological Economics
I imagine that would be part of regulating the more standard part of prostitution. Much like child-tobacco use or child-alcohol consumption.
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freak (profile), 19 Aug 2011 @ 6:45pm

Re: Re: Re: Re: Sociological Economics
I never quite thought about it that way.

I guess I do see more schoolkids smoking marijuana than tobacco . . .
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trish, 19 Aug 2011 @ 7:11pm

pro
I don't think legalizing prostitution will stop some people from kidnapping women and girls and selling them into slavery. Employers don't make 100% profit in legit business. I don't know if legalization would be a good idea or not, just that it would not fix this particular problem. I also think going after Backpage for this is stupid, because like you've said many times Mike, it makes it a lot easier for the police to find something when they're posting ads everywhere.
This just means, the police should have dedicated hooker-ad-troll teams, I say.
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That Anonymous Coward (profile), 19 Aug 2011 @ 10:19pm

Confused for a moment by something only slightly related.

"Natural Mother" - I'm guessing birth mom or is this one of those weird terms.
and
"Next Friend" - ?

I'm glad for the outcome of the case, but maybe someone should be paying more attention to the child at the center of it all rather than trying to get paid.
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That Anonymous Coward (profile), 19 Aug 2011 @ 10:33pm

Re: pro
While there might always be people who kidnap and force others into prostitution, if it was made legal there would be changes.

If it were legal -
The cost of the "services" would come down. They are no longer inflated with the need to pay protection, and the "illicit" tax we discover on illegal things. People who want it are willing to pay more and justify the price in their own mind.

ex - A pound of pot used to be worth x. The same pot bust today has a street value of x+y. Because it is illegal, they pay more for it.

It would help kill the "glamor" factor some people assume the life of an escort is. Its just a job, not an adventure on the dark side.

This type of work should require people to pay for a license to do the work. It could have the requirement of STD testing, for the workers and public safety.

If you make it legal, finding those who are kidnapping and forcing people into this work becomes easier. They stand out more because your not wasting time on someone who is legit and you can move past them as your trolling.

Sadly there were only a few departments across the country who have/had teams working the online classifieds. Those who used the tools provided by Craigslist were happy for the assistance. Others who refused to believe that the internet is anything more than a fad, stomped their feet about the website not doing enough to protect society. They grandstanded in public to get votes and sway public opinion to make them think they had a duty to do more, while hiding what the companies were doing.
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G Thompson (profile), 19 Aug 2011 @ 11:52pm

Re: Re: Sociological Economics
Exactly.

Making it legal, and then regulating the industry is the only way to solve some of the nefarious problems.

It wont solve them overnight, and never 100% but things like child prostitution would be condemned by all legal establishments and they also have a financial incentive to stop the illegal establishments too when they find them.

That's why within Australia prostitution is a legally regulated industry to such an extent that we have a few currently on the Australian Stock Exchange ( http://en.wikipedia.org/wiki/Daily_Planet_%28brothel%29 ) and one in the process of doing its IPO as I type.
[ http://www.smh.com.au/nsw/trading-in-sex-asx-float-for-mega-brothel-20110801-1i88a.html ]
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G Thompson (profile), 20 Aug 2011 @ 12:02am

Re: Re: Re: Sociological Economics
Also it is highly hypocritical of US politicians (state and Federal) saying how all these entities promote prostitution and child prostitution and it is so evil , whereas the USA is the only other country other than Somalia to have NOT ratified the "UN Convention on the Rights of the Child".

and has never even signed (or therefore ratified) even the "Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography" which can be a separate part of it.
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Norma Jean Almodovar (profile), 20 Aug 2011 @ 9:21am

Re: limit the channels
How do we solve the problem of domestic violence and spousal abuse when marriage is legal? How do we solve the problem of rape when consenting (non commercial) sex outside of marriage is legal? You cannot solve a problem by making the net so large and the laws so over broad that you drag in those who are not victims. And when the cops are often times the perpetrators of the abuse against sex workers, who do sex workers turn to for help?

Decriminalize consenting adult commercial sex and allow sex workers to turn in those who abuse them without being arrested for being a criminal. Not one single child is saved by arrested adult prostitutes and their non violent, non abusive clients. Scare and valuable resources are squandered and the system is overwhelmed by the number of arrested adult prostitutes. This helps NO ONE!
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Any Mouse (profile), 20 Aug 2011 @ 1:13pm

Re: Re: Re: Re: Re: Think about it in the real world for a second.
There is no duty. You're suggesting they do the police's job. Granted, if I were running the business and I came across specific knowledge I would likely turn that knowledge over to the police. THAT is their specific duty.
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Anonymous Coward, 20 Aug 2011 @ 2:49pm

Re: Re:
But don't you think there are more people who get away with human trafficking (i.e. forced prostitution) that use resources like backpage than people who are actually caught and prosecuted? Backpage needs to consider the fact that a human life is worth immeasurably more than the money generated from their adult services section. It's a matter of responsibility, not legality.
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Norma Jean Almodovar (profile), 20 Aug 2011 @ 3:01pm

Re: Think about it in the real world for a second.
Prostitution is sex for money or other consideration. (BTW Women who marry for money are not excluded from this definition). Even the police can't just arrest someone because they suspect that prostitution might be taking place- so how is it that an individual who may be viewing the ads is more likely than the cops to KNOW that it is an ad for prostitution, unless they respond to the ad and are 100% certain that it is prostitution? When the cops do a sting operation, they must get the 'suspected prostitute' to break the law in front of the nice officer so they can arrest the 'victims' of exploitation... because that's what we do to 'rescue' consenting adults who may be selling that which they can legally give away to anyone they want and to as many partners as they want- so long as NO ONE GETS PAID!

So why again is it the job of craiglist or backpage to contact the police when they do not actually know that a woman is out there being 'exploited' when she places an ad?
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Norma Jean Almodovar (profile), 20 Aug 2011 @ 5:05pm

Re: Re: Re:Getting away with what?
Your presumption is that most adult women who may engage in adult activities for money or other consideration are incapable of making their own choices. The fact is we are quite aware of what our human life is worth and we are not being trafficked as you are led to believe by the abolitionists who think (in their bizarre fantasy) they have a right to prevent consenting adults from consorting with each other for whatever reason. The reality is that forced prostitution is not nearly as common as you think.

Unfortunately, those with an agenda to abolish all prostitution will tell you that women are 'forced economically' to engage in sex work, while not bothering to be concerned about women who are economically forced to stay married to men who abuse them, or women who are forced into domestic service (would you willingly clean the toilets of other people?), or who are forced to remain in a job they hate working as a secretary/ waitress/ maid/ whatever.... you don't seem to care that many people are "Forced" to work in jobs they may or may not love, but if it is sex, then you think it is appropriate to prevent them at all costs from engaging in such work because it upsets your moral sensibilities! For goodness sakes, you folks who think that all us sex workers are uneducated docile females really need to get out in the world!

It all boils down to how you view sex. If you think sex is dirty and evil, then of course you will believe that those who engage in commercial sex are also dirty and evil. However, if you believe as I do that on a scale of 1 to 10, murder is the worst thing you can do to your fellow man, then giving someone an orgasm (for money) has to be one of the best things you can do. Unless of course you don't think pleasure is important or morally acceptable. It is your right to think that way, but not your right to impose that thinking on the rest of us! It is a matter of responsibility for people like you to mind your own business and allow other grownups to mind theirs.
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Norma Jean Almodovar (profile), 20 Aug 2011 @ 7:40pm

Re: pro
There are currently between 400,000 to 500,000 untested rape kits in police evidence lockers nationwide... these are cases where a woman or girl was raped, went to the police for help, underwent an intrusive and arguably traumatic procedure to obtain DNA evidence- and then went home and waited, and waited and waited... nothing. No rapist caught. No rapist punished.

According to the government's studies on domestic violence and intimate partner rapes, there are 4.8 MILLION cases EACH YEAR that are reported and very few times is there a suspect (the intimate partner) arrested and incarcerated. Why? Because we do not have the financial resources to deal with that amount of abuse in terms of court costs and incarceration.

According to those who keep track of child sexual abuse statistics, 90% of all cases of child sexual abuse are at the hands of someone the child knows- and 68% are family members. Teachers, clergy members, cops, boy scout leaders and other 'trusted' sources are the second greatest threat to children as far as actual sexual abuse is concerned. There are literally hundreds of cases of those trusted community leaders who engage in child sexual abuse and child pornography.

But you want the police to have a dedicated hooker-ad troll team? Seems to me that you have no idea what goes on in the real world. Why not leave the adult hookers and their non abusive, non violent clients alone and allow the police to go look for the rapists, child molesters and spousal abusers.... wouldn't that make more sense than having the cops troll for adult men and women who sell what they could otherwise legally give away? I would be happy to provide anyone who wishes with the sources for my accusations above. Or you could do the research yourself and find it like I did.
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Anonymous Coward, 21 Aug 2011 @ 3:28pm

Prostitution should be legalized...but only for medical reasons, of course.
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Anonymous Coward, 21 Aug 2011 @ 7:53pm

Re: Re: Re: Re:Getting away with what?
To Norma Jean Almodovar, you posted "Your presumption is that most adult women who may engage in adult activities for money or other consideration are incapable of making their own choices." You even link your name to a site calling itself protitutionresearch.info, a site which seems to be setup to complain about a similarly named .com site. Conveniently the site has numerous broken links which really discredits you right from the start.

First off, lets talk about your quote from my first paragraph. This statement is all fine except that the story is not talking about adult women. Ill use caps to help you understand it better, THIS IS ABOUT CHILDREN BEING SOLD AS SEX SLAVES. And you also talk about views of sex as related to other crimes. You can be quotes as also saying "murder is the worst thing you can do to your fellow man, then giving someone an orgasm (for money) has to be one of the best things you can do" but this is not about how you view sex. This is about how people view child abuse. Frankly torture is worse than murder, at least with being killed your pain ends and, in the case of sexual torture, your not stuck with it for the rest of your life.

Believe me, I know, I have had to watch the side effects of sexual abuse and I have no time for people who inflict it. You think selling children as sex slaves, and the arguments associated, is about sex? You really need to reevaluate your views. Your views are not worth the 1's and 0's it takes to post them. Go rant somewhere else.
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Bnesaladur (profile), 21 Aug 2011 @ 8:19pm

Gotta disagree on some level
Mike,
I respect your views but on this I must disagree. While I believe you are mostly right, that one should not be held liable for crimes committed USING their service, that safe harbor should only apply if they have taken reasonable steps, where possible, to ensure said crimes can be stopped before they happen.

With, let us say for example, gun manufacturers, safeties are in built in for protection against misuse, but their is nothing really they can do over where the gun is pointed. With digital services, they can build in a safety to reasonably protect the public as well. It is definitely not the same as pulling the trigger, or in this case, selling a child to be a sex slave, but I'm suggesting a fine for not having a safety built in. While steps could be taken to mitigate the protection it provides but I think it needs a safety. It may make it harder to complete the transaction.
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Norma Jean Almodovar (profile), 21 Aug 2011 @ 9:34pm

: Re:Getting away with what?
I don't think YOU get it, sir Coward, it is all about adults and sex. The whole point of the lawsuit against VillageVoice and Craigslist was to abolish ALL prostitution... ANYWAY THEY CAN.

You may have had to watch the side effect of sexual abuse, but I have had to watch the side effects of police corruption and abuse- and rape of adult prostitutes- ALL because of the abolitionist philosophy of eliminating ALL prostitution.

I do not want ANY children involved in any adult activity, whether it be sex or marriage or whatever adults can do that children are not permitted to do. The fact is that 90% of those children who are sexually abused are abused by members of the clergy, cops, teachers etc. ad nauseum. Family members are the primary abusers... so HOW do we eliminate that problem or the problem of adults forcing children into prostitution if we attempt to abolish all prostitution- including consenting adult?

Apparently your using ALL CAPS to help ME UNDERSTAND better is because YOU THINK THAT I AM NOT LITERATE? Many years ago, when I worked for the Los Angeles Police department before I grew tired of the corruption I witnessed on a daily basis and decided to become an honest prostitute, I was evaluated after an on duty injury, and according to a top psychologist used by the LAPD, my intelligence was "grossly above average." So I don't think you need to patronize me by inferring that because I was a sex worker, I have less of an aptitude for understanding.. and what I understand best is that moral hypocrisy to 'save the children' from being sex slaves when far more are being abused by EVERYONE but those who may find them on the internet and that NO ONE seems to want to address that issue.

If you should want to research it more, you can go to the US Bureau of Justice Statistics to find the recently published (April 2011) report "Characteristics of Suspected Human Trafficking Incidents, 2008-2010" and the previous report from 2007-2008, which give some very interesting statistics.

For the two and a half years covered in the most recent report, total number of incidents of found victims of human trafficking was 2,515, of which 2,065 were classified as sex trafficking (this number includes children as well as adults). Of these, 30% were found to be actual cases of trafficking, 38% found NOT to be human trafficking and the rest were undetermined at the end of the study. Data in this report are from the Human Trafficking Reporting System (HTRS), which was designed to measure the performance of federally funded task forces.

HTRS is currently the only system that captures information on human trafficking investigations conducted by state and local law enforcement agencies in the United States. So while the abolitionists posit that there are hundreds of thousands of victims every year, the federally funded agency says that of the 2,065 cases (over the two and one half year span that this report covers), only 218 were confirmed to be sex trafficking, 267 were found not to be sex trafficking and 229 were pending or unknown status. Where are the rest of the victims? Why can't they be found?

As for ranting, I will rant anywhere that ignorance on this important issue rears its ugly head.

I suggest that you do some research like I have and find the untold cases of cops, FBI agents and judges who are pedophiles and do not find their victims on the internet. They find them wherever they work. If you are truly concerned about children being used not just as sex slaves but as sex toys of pedophile priests, cops, judges etc. then you will have to conclude that if we do not decriminalize consenting adult commercial sex, we will not have the resources to help ALL the victims of pedophiles- wherever those pedophiles find their victims.
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nobody special, 1 Sep 2011 @ 7:37am

Re: Re: Think about it in the real world for a second.
You have it mostly right. The problem with your freon salesman example is that the salesman could actually open himself up to suit if he refuses to sell to the suspected meth lab.

DuPont faced this when they refused to sell Teflon to companies that were putting it into engine oil additives. DuPont had tested Teflon in this usage and found it had little positive benefit and often hurt the engines it was tested in. They did not want their name associated with such products. The snake oil manufacturers sued and DuPont was forced to sell to them. The best they were able to salvage was that the customers weren't able to use the trademark "teflon" name and had to use the generic name of PTFE.

Now would a meth lab, or in this case a pimp sue? Probably not, but such laws put providers in a damned if you do, damned if you don't, no-win situation.
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dwg, 13 Oct 2011 @ 4:52pm

Re: Re: Re: Think about it in the real world for a second.
This is, I think, wrong on the law. The DuPont case might be right, but all companies have the right to refuse service to would-be customers, so long as the reasons for refusal are not, themselves, illegal (race- or gender-based, for example).

There are nuances here, and anti-competition law has some application, too--I'm just not sure that a supplier must serve anyone who asks to buy. I'd love to talk more about this one.
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hunkalunk, 31 Oct 2011 @ 5:57am

Re: Re: Re: Re:Getting away with what?
Well great so where in the bible does it say its ok to be a tramp and hooker. I am sure it says God created sex for husband and wife not married men and hookers.and in Gods eyes all sins are equal.If backpage were to remove the ads then the sextrafficking of young girls would nearly stop here in houston which by the way is the capital city for this sick crime! I cant wait to start catching me some sex trafficers and men that exploit litle girls we have glorified team out here this next month thats gonna be good! Also coming soon the illegal immigrant fan bus by citizens for citizens to remove them from our soceity and put them back in mexico
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hunkalunk, 31 Oct 2011 @ 5:58am

Re: Re: Re: Re:Getting away with what?
Well great so where in the bible does it say its ok to be a tramp and hooker. I am sure it says God created sex for husband and wife not married men and hookers.and in Gods eyes all sins are equal.If backpage were to remove the ads then the sextrafficking of young girls would nearly stop here in houston which by the way is the capital city for this sick crime! I cant wait to start catching me some sex trafficers and men that exploit litle girls we have glorified team out here this next month thats gonna be good! Also coming soon the illegal immigrant fan bus by citizens for citizens to remove them from our soceity and put them back in mexico
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Anonymous Coward, 2 Nov 2011 @ 6:23am

Re: Re: Re: Re: Think about it in the real world for a second.
But the difference is that bp actively participates in marketing the illegal services by creating a category for it. If there is no category then it cant be sold. Tberefore that makes them responsible unlike a hotel or flea market that does not explicitly promote prostitution or fraudulent products.
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nysexcort (profile), 17 Nov 2011 @ 12:34am

Re:
forget about backpage..nysexcort.com is the 100% free adult site
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F-F-Fred (profile), 23 Nov 2011 @ 5:33am

Backpage.com prostitution
This doesn't make any sense. Many years ago Soldier of Fortune Magazine was sued because someone hired a hitman off their classified page. The ad didn't say anything about killing for hire. The ad was basically someone looking for work as a mercenary or bodyguard. The magazine lost and had to pay.

Can anyone contact the attorney and let them know of that case?
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