Omegle Defeats Lawsuit Over User’s “Capping”–MH v. Omegle

December 16, 2024 · by Eric Goldman · in Content Regulation, Derivative Liability

Omegle enables real-time video and text chats with users assigned at random. The case involves an 11 year old girl who was a first-time Omegle user. The complaint alleges that a malefactor John Doe manipulated her into disrobing so he could make screengrabs.

The appellate court refers to Doe’s behavior as “capping.” It calls these facts “horrific” and says they “underscore that the internet in general and social media in particular pose grave risks to children.” A reminder that Section 230 cases often require the judges to apply the immunity to tragic facts.

The court dismissed the case on Section 230 grounds. The 11th Circuit affirms, but relies only partially on Section 230 grounds.

Knowing CSAM Possession

The district court dismissed the CSAM civil claim on Section 230 grounds. The majority disregards that approach and chooses instead to dismiss the claim for Omegle’s lack of scienter. This is a surprise move because the district court never analyzed the scienter issue at all (Section 230 mooted it). A dissent would have sent the question back to the district court to evaluate Omegle’s scienter (specifically, whether it had “deliberate indifference”).

The majority says: “the operative complaint does not allege that Omegle.com ever possessed or accessed the images that John Doe recorded…there are no allegations that would support the conclusion that Omegle.com knowingly possessed or accessed John Doe’s recording knowing it was child pornography.” The majority distinguishes Doe v. MG Freesites because the defendant in that case hosted the video and allegedly exercised other content moderation steps around it.

FOSTA

The plaintiff invoked the FOSTA exception to Section 230, which required the court to decide if plaintiffs to show the defendant had the higher scienter required by 1591 or the lower scienter of 1595.

The 11th Circuit agrees with the 9th Circuit in Doe v. Reddit that 1591’s higher scienter requirement applies to the 230 exception:

We hold that the FOSTA exception to section 230 for civil sex trafficking claims requires that plaintiffs allege and prove actual knowledge….

The phrase “constitutes a violation of section 1591” is not ambiguous. The most straightforward reading is that FOSTA permits civil sex trafficking claims against online platforms only when a platform’s conduct violates the criminal TVPRA provision.

The court also correctly notes the legislative history showing that the Senate Commerce Committee intentionally amended SESTA to add the higher scienter requirement.

The complaint only alleged Omegle’s constructive knowledge at most, not actual knowledge. Therefore, the plaintiff didn’t qualify for the FOSTA exception to Section 230.

Implications

Omegle exited the industry a year ago, making this a legacy case. It’s even more of a legacy because Omegle’s counsel has stopped representing Omegle. When the court issued this opinion, Omegle was self-representing as a pro se LLC–which isn’t permitted by court rules.

The 1591/1595 divide is fundamental to FOSTA workarounds to Section 230. The Senate Commerce Committee expressly modified FOSTA to add the higher scienter after its emotionally-wrenching SESTA hearing (one of my least favorite professional moments of my career). For those who sat through or reviewed the hearing, there is no doubt what the Senate Commerce Committee was trying to do–i.e., raise the scienter bar. Yet, its wording was cumbersome enough that plaintiffs have nevertheless sought to overturn that modification–and have gotten some district court judges to agree along the way. If/when the appellate courts uniformly establish that the 1591 scienter is required to bypass Section 230, I expect we’ll see a decline in the number of FOSTA cases.

Case citation: M.H. v. Omegle.com, LLC, 2024 WL 5040478 (11th Cir. Dec. 9, 2024). I filed a rebuttal report in this case in the district court proceedings, but the court granted the motion to dismiss without considering any of the expert reports.

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Omegle Defeats Lawsuit Over User’s “Capping”–MH v. Omegle

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