Catching Up on a FOSTA Case–ML v. Craigslist

April 27, 2022 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

This is one of many FOSTA cases in process. They are all quite complicated and hard to understand. This particular lawsuit targets Craigslist even though Craigslist shut down its adult services category in 2010, eight years before FOSTA was enacted, and some of the ads in question are from 2008 or before. In the latest ruling, the supervising judge responds to the magistrate’s R&R. Mostly, the judge accepts the R&R with only minor deviations favorable to Craigslist, ending some of the lawsuit and leaving plenty of topics for further proceedings. Some of the points addressed in the court’s ruling:

* The court denies Craigslist’s summary judgment motion based on statute of limitations so it can figure out when the plaintiff discovered Craigslist’s role in the harm and whether she exercised diligence in pursuing her claim afterwards.

* Section 230 immunizes the negligence and strict liability claims against Craigslist. The plaintiff pointed to an Armslist case in Wisconsin, a yearbook case in Illinois, and the 9th Circuit’s Gonzalez case. Regarding the Wisconsin precedent, the court implies there’s a brewing circuit split: “the Seventh Circuit…has deviated from the majority of circuit courts, including the Ninth Circuit.” The yearbook case’s facts were easily distinguished because the plaintiff “does not allege that craigslist altered or redistributed any content on its website.” The Gonzalez case didn’t change the outcome because:

M.L.’s allegations seek to hold craigslist liable as a publisher or speaker of a third party’s content. Unlike in Roommates.com, nothing in craigslist’s terms of use or on its website required or even prompted posters to post unlawful content. The closest thing to prompting unlawful content is the subsection title “erotic services.” But erotic services include lawful content, such as erotic dancing. Further, providing neutral tools, such as geographic filters, a search bar, and an embedded messaging system does not turn craigslist into a content creator or developer. Failing to remove posts or verify identities is also insufficient. It is unclear how the remaining factors, such as stamping posts with its copyright and requiring posters to use a credit card, could transform craigslist into a content creator. The Northern District of California reached the same conclusion in a similar case to this one, J.B. v. G6 Hospitality, LLC¸ 2020 WL 4901196 (N.D. Cal. Aug. 20, 2020). There, faced with almost identical facts, the court held that craigslist was entitled to § 230 immunity because craigslist only acted as a publisher by providing subsections titled “adult services” or “erotic services” and by failing to verify the age of the person being advertised or the identity of the poster.

Section 230 also applied to the “leading organized crime” claims.

Though the decision doesn’t turn on this point, the court notes some legal irony in the footnotes:

the origins of § 230, its plain language, and the case law interpreting it that the law was designed to protect internet service providers for taking actions to address unlawful or harmful activity, i.e., acting as “good Samaritans.” Holding craigslist’s efforts to address the problem of sex trafficking against it would be directly contrary to Congress’s original intent in passing § 230

* The court reverses the magistrate on part of the Criminal Profiteering Act, holding that the plaintiff didn’t sufficiently allege “that craigslist accepted money pursuant to an agreement to participate in M.L.’s trafficking.” However, another part of the CPA claim proceeds based on the allegation that “craigslist was generally aware its website was being used to facilitate sex trafficking.”

Most of the topics addressed in this ruling will eventually make it to the Ninth Circuit, either in this case or one of the others pending in the court system. Some issues are already pending before the Ninth Circuit.

Case Citation: M.L. v. Craigslist, Inc., 2022 WL 1210830 (W.D. Wash. April 25, 2022)

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Catching Up on a FOSTA Case–ML v. Craigslist

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