Facebook Isn’t Liable for a Commercial Sex Relationship Gone Wrong–A.B. v. Facebook

July 8, 2021 · by · in Content Regulation, Derivative Liability

The court summarizes the plaintiff’s contentions (note: “Lund” and “Sex Worker” are the same person):

the Complaint alleges Lund “contacted” Plaintiff and provided him with “sexually provocative pictures, offer[ed] sex, description of sex acts, and other sexually provocative statements” to Plaintiff, Plaintiff “respon[ded]” to the Sex Worker’s messages, and Plaintiff and Sex Worker “continue[d] with their online dating on Defendant, WhatsApp, in private.” Plaintiff alleges “[f]or each and every sexual acts [sic] described or performed online, Plaintiff, A.B., had to pay money,” Plaintiff paid Sex Worker I money before he “engaged in online sex with the promise of better sex in person with more money,” and Plaintiff “had to pay significant money to Defendant Sex Worker I … for online commercial sex.”

A.B. sued Facebook and WhatsApp for their role in this scheme. The court dismisses the complaint on the grounds of in pari delicto.

The court cites Section 230 as alternative grounds for the dismissal:

  • ICS Provider: “Plaintiff does not dispute Defendants Facebook and WhatsApp are interactive computer services.”
  • Third-Party Content: “Plaintiff seeks to hold Defendants Facebook and WhatsApp liable for statements made to Plaintiff by Lund.”
  • Publisher/Speaker Claim: “Plaintiff seeks to hold Facebook and WhatsApp liable as publishers of the statements provided by Lund to Plaintiff using Facebook’s social media platform and WhatsApp.” The plaintiff alleged violations of 18 USC 1591/1595, which might have fit into FOSTA’s exclusion for civil claims, but the court doesn’t address FOSTA at all.

To get around Section 230, the plaintiff claimed that Facebook and WhatsApp “are active participants and co-conspirators with Defendant Lund based on their ‘data mining’ and sale of data.” Not this again. The court says the plaintiff’s claims relate to Lund’s statements, not any mined data, so the attempted workaround goes nowhere.

If you’re confused by this case, that makes two of us. Reading the (confusing) complaint, it seems like the plaintiff thinks that Facebook should have known that Lund was operating on Facebook as an extortionate sex worker, perhaps because its “data mining” should have uncovered this fact. (For another unsuccessful case against Facebook trying to impose scienter on Facebook due to its data mining, see Godwin v. Facebook). But what exactly should Facebook have done differently? At its core, it seems like the plaintiff thinks Facebook should have saved him from committing his illegal acts of participating in a commercial sex relationship. Obviously, the court wasn’t moved. This outcome reminded me of Diez v. Google, where Diez sued Google for not stopping him from downloading CSAM.

Still, don’t lose sight of how this case involved allegations that Facebook knowingly hosts commercial sex workers–the kind of thing that could create problems for Facebook under FOSTA…a law that Facebook endorsed. 💯 I’ll have more to say on this when I blog the Texas Supreme Court ruling in In re Facebook.

Case citation: A.B. v. Facebook, Inc., 2021 WL 2791618 (C.D. Cal. June 1, 2021). The complaint.