Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist

September 13, 2020 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

In April, a magistrate judge issued a breathtaking ruling that Craigslist can be sued for sex trafficking torts, that Section 230 didn’t support Craigslist’s motion to dismiss, and that the statute of limitations might not apply even though the facts at issue took place in 2008 or before. Craigslist contested the magistrate report but makes no progress with the supervising judge.

Section 230

Craigslist pushed back on the plaintiffs’ allegations that Craigslist had been involved with creation or development of the sex traffickers’ ads. The court says the following allegations sufficed to survive Craigslist’s motion to dismiss:

her complaint makes numerous allegations regarding craigslist’s involvement in developing or creating the advertisements used to traffic Plaintiff—more than the plaintiffs in Chicago Lawyers’ or in Dart. Plaintiff alleges that traffickers developed the advertisements in conjunction with craigslist’s rules and guidelines. Plaintiff also alleges that the traffickers would pay a fee to craigslist so that the advertisement could be displayed in the “erotic services” section of the website. Plaintiff claims that craigslist facilitated and assisted traffickers and purchasers through its communication system, which allowed anonymous communication and evasion of law enforcement. Through craigslist’s unique system, Plaintiff alleges that craigslist facilitated her trafficking and reaped financial benefits. Moreover, Plaintiff alleges that it was craigslist’s policy that images on the “erotic services” section of the website were to be blurred and cropped and that traffickers used this policy to facilitate and further Plaintiff’s trafficking. These allegations go beyond a mere assertion that craigslist contributed materially to Plaintiff’s trafficking by having an “erotic services” section. Plaintiff rather asserts specific, concrete actions taken by craigslist that facilitated her trafficking.

Everyone agrees that Craigslist accepted paid advertising. Is the court saying that such services categorically don’t qualify for Section 230? Because otherwise, exactly what “specific, concrete actions” did Craigslist take to facilitate the plaintiff’s trafficking? A reminder what Doe v. Backpage.com, LLC, 817 F.3d 12, 22 (1st Cir. 2016) said on this point: “[C]laims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by section 230(c)(1).”

The plaintiff’s FOSTA claims get the same Section 230 treatment:

The Court agrees with craigslist’s argument that FOSTA does not create [a Section 230] exemption for all § 1595 claims. Yet, for the same reasons discussed in the preceding section on Plaintiff’s state law claims, CDA immunity for Plaintiff’s federal law TVPRA claim is not warranted at this stage. Plaintiff has alleged sufficient facts in regard to craigslist’s development or creation of the advertisements which trafficked Plaintiff.

The court didn’t address the JB v. Craigslist ruling’s discussion of Section 230, which found that Craigslist qualified for Section 230 against sex trafficking allegations.

1595 Claim

Craigslist said it lacked the requisite scienter about the plaintiff’s situation. The court now acknowledges and agrees with the JB case, specifically its suggestion that constructive knowledge satisfies the 1595 scienter requirement:

Plaintiff has alleged that craigslist was aware that its website was hosting sex trafficking advertisements, and that craigslist benefitted financially through charging fees for advertisements on its “erotic services” section. At this stage, Plaintiff has pled sufficient facts to establish that craigslist plausibly had constructive knowledge of her trafficking. Plaintiff does not need to allege that craigslist knew specifically of her trafficking or of Plaintiff’s specific identity, but rather that craigslist knowingly fostered a business relationship with traffickers to support the venture of trafficking Plaintiff. Here, Plaintiff has alleged that craigslist knew that traffickers were using the “erotic services” section of its website and that craigslist retained a financial benefit from her traffickers through the purchase of advertisements on the “erotic services” section. Therefore, Plaintiff has sufficiently alleged that craigslist had constructive knowledge of her trafficking

Once again, the court may be implying that every ad-supported venue potentially satisfies the scienter standard if it published ads from sex traffickers.

Though Craigslist didn’t make any real progress in this ruling, the district court judge reiterates that the plaintiff can only recover damages for the 1595 claim for activity between December 23, 2008 and December 31,2008–if any. Between the statute of limitations and the likelihood that the 1595 conduct falls outside this window, this case may look substantially different when the court reaches those questions on summary judgment.

Case Citation: M.L. v. Craigslist, 2020 WL 5494903 (W.D. Wash. Sept. 11, 2020)

More SESTA/FOSTA-Related Posts:

Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist

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