Section 230 Immunizes OnlyFans for User-Uploaded Video–Doe v. Fenix

November 10, 2024 · by Eric Goldman · in Content Regulation, Derivative Liability

[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. 📉 ]

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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.

The victim sued OnlyFans for a FOSTA violation. The court dismisses OnlyFans per Section 230. The ruling is instructive because the plaintiff tried a panoply of Section 230 workarounds, but none worked.

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.

The court responds: “Pointing to persuasive case law, Fenix contends that Plaintiff’s allegations far well short of what is needed to overcome CDA immunity. I agree…. That is true regardless of whether the allegations are viewed singly or in combination. In other words, this is not a situation where the sum is greater than its parts.”

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)

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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.”

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More SESTA/FOSTA-Related Posts

Section 230 Immunizes OnlyFans for User-Uploaded Video–Doe v. Fenix

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