Section 230 Immunizes OnlyFans for User-Uploaded Video (Again)–Doe v. Fenix
A prior ruling described the facts the court describes as “harrowing”:
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
Charles and Romelus were criminally prosecuted and took plea deals that (surprisingly) avoided jailtime.
Because the opinion consists of the supervising judge’s response to the plaintiff’s response to the magistrate judge’s R&R, the opinion is disjointed and difficult to summarize. The problem is compounded by the plaintiff’s initial approach of advancing lots of arguments hoping that something might stick.
Here are some of the pieces from the latest opinion that stood out to me:
- “The Plaintiff never suggests that Fenix required or even incentivized Romelus or other OnlyFans users to post content that (for instance) “promote[s] the exploitation of women[.]””
- “Neither verifying Romelus’s account nor “advertis[ing] and promot[ing]” Romelus’s videos meets the material-contribution standard.”
- “The law is clear that a service provider doesn’t shed Section 230 immunity when it neutrally promotes all its users’ content in the same way (as Fenix allegedly did here).”
- “Magistrate Judge Strauss properly considered (and discarded) the Plaintiff’s wholly conclusory allegation that anonymized web traffic and paywalls helped Romelus sell his illicit video.”
- “the Plaintiff’s view that Fenix should be liable for Romelus’s content merely because Fenix’s rules are ineffective or inconsistently enforced has been repeatedly rejected”
- “Unlike our case, the defendant in MG Freesites allegedly accessed, reviewed, and approved every video on its website containing child pornography and actively helped child pornographers hide their content from law enforcement.” [Note: MG Freesites is discussed more below.]
- “Fenix’s nonchalance about the content that’s posted on OnlyFans doesn’t establish “actual knowledge”” for FOSTA purposes.
Case Citation: Doe v. Fenix International, Ltd., 2025 WL 336741 (S.D. Fla. Jan. 30, 2025)
MORE ON DOE V. MG FREESITES
An update on the Doe v. MG Freesites case, where a class action claims that Pornhub committed FOSTA violations by helping generate and disseminate CSAM. The court denied summary judgment for both sides, likely sending this case to trial. Doe v. MG Freesites, Ltd., 2024 WL 5339485 (N.D. Ala. Dec. 19, 2024).
The court again denies a Section 230 dismissal. The court says Pornhub creates new content in multiple ways:
- “Defendants create new CSAM by creating thumbnails that advertise CSAM videos to users, which is done for every video on the sites.”
- “Defendants contribute to the content’s illegality by creating tags and categories associated with CSAM, and by adding, removing, and modifying tags, categories, and sometimes titles, of videos. Defendants require all videos to contain tags. No video could be uploaded without choosing from a set of Defendants’ created tags. Every video on Defendants’ sites can be found by searching tags. There is an entire team devoted to checking submitted videos to ensure they have the correct tags and to add any tags or categories that are relevant to help promote the videos.”
- “Defendants required uploaders who were also their Modelhub Program members and Content Partners to follow detailed instructions, including how to tag videos and use keywords in titles. In one instance, an employee advised an uploader whose video had been deactivated that it was likely due to it including both “young” and “teenager” tags. The employee offered to confirm if this was the reason for deactivation and if so, the employee offered to remove one of the tags indicating CSAM so that the video could be restored. Such instruction, advice, and ongoing tailoring of content by Defendants means that they “developed” this content on their sites.”
- “the entire algorithm that Defendants created and employ for their sites uses the tags and categories it created and the keywords in titles to help uploaders advertise CSAM and help users seeking CSAM locate it.”
From my perspective, the court is doubling down on its initial errors. This opinion is shot through with the Moderator’s Dilemma. Should Pornhub do more or less moderation? The more it does, it seems like the court expects moderation to be done without any errors. You can also see some obvious tensions with the OnlyFans ruling discussed above.
Unsurprisingly, this judge thinks the Anderson v. TikTok ruling is swell:
As in Anderson, Defendants’ tags, categories, and search function (including recommended and keyword searches), are designed to curate content, including illegal CSAM, to users looking for it. Although third parties may originally film the CSAM, Defendants sell advertisements around it in a tailor-made way for users by requiring the content to contain Defendants’ created categories and tags, so it can be advertised as CSAM, and those searching for CSAM can find it. These curation processes, including Defendants’ proprietary algorithm, are Defendants’ own expressive—and in this case illegal—activity
The court also cites the Huckabee opinion, which was obligated to follow the Anderson precedent. This court doesn’t acknowledge that it’s not in the Third Circuit and Anderson isn’t binding precedent, but the judge is clearly selectively citing precedent that supports the outcome it desires.
This becomes painfully evident when the court rejects Pornhub’s citation to a Ninth Circuit opinion (Doe v. Twitter) because the “decision is unpublished, not binding, and no court in the Eleventh Circuit has relied upon it.” To point out the obvious, the Anderson opinion is also not binding and no court in the 11th Circuit has relied upon it, and yet the court embraces it anyway. This is the kind of Calvinball we’re routinely seeing with Section 230 jurisprudence, and it portends to the functional demise of the immunity.
Based on its embrace of Anderson, the court disregards all of Pornhub’s citations on the grounds that Moody changed everything about Section 230 and mooted all of those rulings.
The court makes it clear, as it did before, that it’s not relying on the FOSTA exceptions to Section 230. Instead, it’s saying that Pornhub’s methods for gathering and organizing third-party content categorically don’t qualify for Section 230. I imagine Pornhub is banking on getting more neutral treatment from the appellate court.
The court also rejects a 230 defense to the CSAM civil claims. I’ll just quote this line as an example of the court’s results-oriented discussion: “CSAM, by contrast, is itself a violent crime, a record of that crime, and contraband—not information.” I trust it’s obvious that this sentence is in tension with itself.
More SESTA/FOSTA-Related Posts
* The Fifth Circuit’s Campaign to Undermine Section 230 Is Making Progress–AB v. Salesforce
* Omegle Defeats Lawsuit Over User’s “Capping”–MH v. Omegle
* Section 230 Immunizes OnlyFans for User-Uploaded Video–Doe v. Fenix
* 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