Section 230 Immunizes OnlyFans for User-Uploaded Video–Doe v. Fenix
[Trump came close to repealing Section 230 in the 2020 lame-duck Congressional session (while he was also busy fomenting the J6 insurrection). With him returning to the presidency, the odds are extremely high that he will finish this project and repeal Section 230 in the near future. I’m still blogging Section 230 cases as I see them, even though these posts are likely to have only historical value. 📉 ]
* * *
The court summarizes the horrifying allegations:
In April 2022, Defendant Bendjy Charles (“Charles”) and Romelus raped Plaintiff. Charles and Romelus filmed each other while they raped Plaintiff. Romelus subsequently uploaded video footage of Romelus and Charles raping Plaintiff, with Plaintiff crying and screaming while they raped her, to OnlyFans and began to sell the footage on OnlyFans as a part of a monthly subscription package. Fenix profited from sales of the video footage that Romelus posted on OnlyFans
Both Charles and Romelus were criminally prosecuted and took plea deals that (surprisingly) avoided jailtime.
Is OnlyFans an ICP? The parties agree to use the Roommates.com-inspired test that a defendant becomes an ICP when it “materially contributes to the unlawfulness of the conduct.” The plaintiff also claimed that “augmenting” content turned a defendant into an ICP, but the court disagrees.
The plaintiff made the following allegations of OnlyFans’ material contributions to the video:
[OnlyFans] (a) required Romelus to include social media hyperlinks in his profile, which in turn focused on sexually exploiting “drunk girls,” “stupid college girls,” “freaky girls,” and so forth; (b) displayed a check mark next to Romelus’ name showing that he was “verified” and creating the impression he should be trusted; (c) created its own content and webpage posts, which linked viewers to Romelus’ profile and videos and which added new captions, new video and content summaries, new animations and/or new video thumbnails; (d) failed to enact or enforce any safeguards to remove trafficked material from the website; (e) anonymized web traffic and utilized a paywall in order to make it easier for content providers to sell illegal material on the website; (f) failed to enforce its alleged corporate policy requiring a signed release form showing consent by any third party (like Plaintiff) who appears in a posted video and (g) took a 20% share of the profits from all of Romelus’ videos.
Seven different ways that OnlyFans allegedly contributed to the plaintiff’s harms may sound like a lot, but the court resolves each allegation seriatim rather than as a package. This is because none of the allegations change the obvious situation that “the SAC is predicated on content created by the other defendants, not on any content that Fenix created.” The court rejects each allegation:
- The court says that the addition of “summaries, animations, or thumbnails” might constitute content development, but the plaintiff’s claims aren’t based on those content items, nor did the plaintiff explain how those content items made the uploaded video more unlawful.
- The court calls OnlyFans’ requirement that users post links to their social media accounts a “content neutral policy.”
- OnlyFans’ verification of Romelus’ identity (along with a verification checkmark) “has no bearing on whether Fenix contributed to the unlawfulness of the content at issue.”
- OnlyFans’ failure to erect content safeguards against “trafficked material” “goes to the very heart of what is immunized by the CDA.”
- The court was confused by the allegations that OnlyFans used a paywall and anonymized content (especially because OnlyFans verified Romelus’ account).
- OnlyFans’ failure to enforce its policy requiring signed model releases didn’t add to the illegality and runs contrary to Section 230’s negation of the moderator’s dilemma.
- OnlyFans’ revenue share didn’t add to the content illegality.
FOSTA
On the 1591/1595 divide, the court comes down on the side of requiring actual knowledge of the illegal conduct, not constructive knowledge, primarily just by reading the statute’s plain language. The plaintiff cited Doe v. Mindgeek, but the court says that’s “bad law” following the Reddit decision.
The plaintiff didn’t adequately allege OnlyFans’ knowledge:
First, the fact that Romelus’ profile on OnlyFans was linked to his social media accounts, which contained captions like “exposing drunk girls,” “exposing stupid college students,” “exposing freaky girls” and “she wants me,” does not show (or even raise a plausible inference) that Fenix had knowledge that Romelus did or would rape someone. At most, it shows that Fenix perhaps should have known that Romelus engages in lewd, tasteless, creepy, and potentially misogynistic behavior. Regardless, it certainly does not show that Fenix knowingly and actively participated in Romelus’ alleged sex trafficking activities. Second, assuming that the video posted to OnlyFans clearly depicts Plaintiff being raped (i.e., that one watching the video would realize what is occurring on the video), that too does not mean that Fenix actively or knowingly participated in Romelus’ sex trafficking activities. Plaintiff simply speculates that Fenix saw the content of the video yet decided to continue to benefit from sales of the video despite knowing what was on the video. However, speculation does not cut it
Implications
Fenix, the parent of OnlyFans, is a UK-based company. Thus, this lawsuit implicates Section 230’s extraterritorial application, but the court didn’t address this issue. It’s my position that Section 230 equally applies to non-US plaintiffs and defendants if they are litigating in US courts. (If they are suing internationally, then the SPEECH Act may restrict plaintiffs’ ability to import judgments to the US that would have conflicted with Section 230 if litigated in the US). For more on this topic, see Anupam Chander, Section 230 and the International Law of Facebook.
I think this ruling diverges from the uncited T.V. v. Grindr decision, a recent ruling from a different Florida district court that held all inferences against the defendants. I think this opinion is better constructed; it’s thoroughly cited and cuts through the plaintiff’s potpourri of allegations to focus on the precise legal question.
In this case, the plaintiff cited OnlyFans’ verification system against the defense, even though the system worked as designed. This contrasts with the standard plaintiffs’ attempted Section 230 workaround based on the absence of sufficient verification systems (even systems that would be unconstitutional to impose). It’s a reminder that plaintiffs will push both sides of a technological option like verification, i.e., liability for not imposing it AND liability for imposing it.
In addition to the resolution of the criminal prosecution of Charles and Romelus, the plaintiff’s civil claims against them are ongoing. This ruling only subtracts OnlyFans from the equation.
Case Citation: Doe v. Fenix Int’l Ltd., 2024 U.S. Dist. LEXIS 198977 (S.D. Fla. Nov. 1, 2024)
* * *
Bonus 230 Ruling: Angelillo v. Facebook, 2024 WL 4529564 (M.D. Penn. Oct. 18, 2024):
Plaintiff alleges Defendant had an obligation to protect him from false and defamatory statements that its users posted, and that its failure to protect Plaintiff was negligent. The objectionable statements at issue involve accusations that Plaintiff is a pedophile, sexual predator, or a serial killer.
Facebook wins on Section 230 grounds:
- ICS provider: Facebook operates a social media site.
- Publisher/speaker claims: “Plaintiff alleges that Defendant allowed people to post defamatory information about him on their website, and did not remove the information. The conduct at issue therefore falls squarely into a publisher’s traditional editorial functions.”
- Third-party content: “Plaintiff alleges the content at issue was posted by the father of a young woman he attempted to help.”
* * *
More SESTA/FOSTA-Related Posts
* Five Decisions Illustrate How Section 230 Is Fading Fast
* Section 230 Preempts FOSTA Claim–Doe v. WebGroup Czech Republic
* Instagram Defeats Lawsuit Claiming It Was a “Breeding Ground” for Sex Traffickers–Doe v. Backpage
* The 7th Circuit’s Section 230 Jurisprudence’s Impact on FOSTA Cases
* Grindr Defeats FOSTA Claim–Doe v. Grindr
* Twitter Defeats FOSTA Case Over CSAM–Doe v. Twitter
* DC Circuit Upholds FOSTA’s Constitutionality (By Narrowing It)–Woodhull v. U.S.
* Section 230 Immunizes Snap, Even if It’s “Inherently Dangerous”–L.W. v. Snap
* The Ninth Circuit’s FOSTA Jurisprudence Is Getting Clearer (and More Defense-Favorable)
* Defendants Get Important FOSTA Win in 9th Circuit–Doe v. Reddit
* More Evidence that FOSTA Benefited No One
* Omegle Denied Section 230 Dismissal–AM v. Omegle
* Section 230 Helps Craigslist Defeat Sex Trafficking Case–LH v. Marriott
* Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce
* Constitutional Challenge to FOSTA Fails–Woodhull v. US
* Catching Up on a FOSTA Case–ML v. Craigslist
* Facebook Loses Jurisdictional Ruling in Texas Sex Trafficking Lawsuit–Facebook v. Doe
* Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
* Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok
* So Many Unanswered Empirical Questions About FOSTA
* Another Problematic FOSTA Ruling–Doe v. Pornhub
* Catching Up on Recent FOSTA Developments (None of Them Good)
* Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
* To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
* FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
* FOSTA Survives Constitutional Challenge–US v. Martono
* 2H 2020 Quick Links, Part 4 (FOSTA)
* Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
* Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
* Section 230 Preempts Another FOSTA Claim–Doe v. Kik
* Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
* Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
* Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
* 2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
* New Paper Explains How FOSTA Devastated Male Sex Workers
* FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
* New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
* Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
* Latest Linkwrap on FOSTA’s Aftermath
* Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking–Doe v. Facebook
* New Essay: The Complicated Story of FOSTA and Section 230
* Who Benefited from FOSTA? (Spoiler: Probably No One)
* FOSTA’s Political Curse
* FOSTA Doesn’t Help Pro Se Litigant’s Defamation Claim Against Facebook
* Constitutional Challenge to FOSTA Dismissed for Lack of Standing (Guest Blog Post)
* An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
* Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage Down”
* Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
* Catching Up on FOSTA Since Its Enactment (A Linkwrap)
* More Aftermath from the ‘Worst of Both Worlds FOSTA’
* ‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
* Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
* District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
* More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
* Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
* Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
* SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
* Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
* Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
* What’s New With SESTA/FOSTA (January 17, 2018 edition)
* New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
* How SESTA Undermines Section 230’s Good Samaritan Provisions
* Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
* Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
* Another SESTA Linkwrap (Week of October 30)
* Recent SESTA Developments (A Linkwrap)
* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
* Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
* My Senate Testimony on SESTA + SESTA Hearing Linkwrap
* Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity