Texas court: Facebook can be held liable for sex trafficking predators

HOUSTON — The Texas Supreme Court ruled Friday that Facebook is not a “lawless no-man’s land” and can be held liable for the conduct of people who use the platform to recruit and prey on children.

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The justices ruled that trafficking victims can move ahead with lawsuits because Facebook violated a provision of the Texas Civil Practice and Remedies Code, which was passed in 2009, the Houston Chronicle reported.

The ruling stems from three civil actions from Houston involving teenage trafficking victims who met the predators through Facebook’s messaging functions, according to the Chronicle. The plaintiffs sued the California-based social media giant for negligence and product liability, arguing that Facebook failed to warn about or try to prevent sex trafficking from occurring on its platforms, the newspaper reported.

The lawsuits also alleged that Facebook benefited from the sexual exploitation of trafficking victims.

Facebook’s attorneys argued the company is shielded from liability under Section 230 of the federal Communications Decency Act, which states that what users say or write online is not the same as a publisher conveying the same message.

A Facebook spokesperson said in a statement that the company is considering what steps to take next.

“Sex trafficking is abhorrent and not allowed on Facebook,” the spokesperson said. “We will continue our fight against the spread of this content and the predators who engage in it.”

The justices, in their majority opinion, wrote that “We do not understand Section 230 to ‘create a lawless no-man’s-land on the internet’ in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking.

“Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that Section 230 does not allow it,” the opinion said. “Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking.”

The lawsuits were brought by three Houston women who alleged they were recruited as teens via Facebook apps and were trafficked as a result of those connections, providing predators with “a point of first contact between sex traffickers and these children,” the Chronicle reported.

According to the Human Trafficking Institute, the majority of online recruitment in active sex trafficking cases in the U.S. in 2020 occurred on Facebook. The organization made the assertions in its 2020 Federal Human Trafficking Report.

“The internet has become the dominant tool that traffickers use to recruit victims, and they often recruit them on a number of very common social networking websites,” Human Trafficking Institute CEO Victor Boutros told CBS News earlier this month. “Facebook overwhelmingly is used by traffickers to recruit victims in active sex trafficking cases.”

One plaintiff said she was 15 in 2012 when she communicated with the friend of a mutual friend on Facebook, the Chronicle reported. She alleged that after the man offered her a modeling job, he posted photos of her on Backpage, an online platform that was shut down in 2018 because it promoted human trafficking. The woman claimed she was “raped, beaten, and forced into further sex trafficking,” the newspaper reported.

The second plaintiff said she was 14 in 2017 when she was contacted on Instagram, another Facebook property. The woman alleged that the man lured her with “false promises of love and a better future,” and then used Instagram to advertise her as a prostitute and set up “dates,” according to the Chronicle. The woman claimed she was raped numerous times and alleged that when her mother reported what had happened to Facebook, the company “never responded.”

The third plaintiff said she was 14 in 2016 when a man she did not know sent her a friend request on Instagram, the Chronicle reported. They exchanged messages for two years, and in March 2018 the man allegedly asked her to leave home and meet her, the newspaper reported. The man allegedly photographed the teen in a motel room and posted the images on Backpage, according to court records.

Facebook’s attorneys argued that Congress used “very broad terms” to preserve free speech, guard against censorship via threat of litigation and avoid inconsistent liability standards.

“When Congress decided to amend Section 230 to combat the scourge of online sex trafficking, it did so with a scalpel, not a hammer -- carefully enumerating precisely the types of claims that would be exempt from Section 230,” Facebook’s attorneys argued in a September 2020 brief to the court. “The balance Congress struck is embodied in the language it used. Congress is free to alter that balance by amending that language. But this Court doesn’t sit as a super legislature to rewrite the statute under the guise of divining legislative ‘purpose.’

“But regardless of what plaintiffs contend Facebook should have done about that third-party content -- prevent it, block it, remove it, edit it, flag it, or warn about it -- the purported duty to take action that undergirds plaintiffs’ claims derives from (Facebook’s) role as a publisher, which is why these claims are prohibited by Section 230.”