Sex trafficking victim asks Ninth Circuit to reinstate lawsuit against Meta

Jane Doe’s attorney argues that the court’s decision last year against X opened the door for his client’s product liability claim to circumvent Section 230.(CN) — A woman who says she was sold for sex on Meta’s Instagram social media platform on Wednesday asked the Ninth Circuit to reinstate her lawsuit seeking to hold Meta liable for knowingly facilitating and benefiting from sex trafficking.Walter Simons, an attorney for the woman identified as Jane Doe in court filings, told the appellate panel in San Francisco that the judge who last year dismissed Doe’s lawsuit as barred by Section 230 of the Communications Decency Act had incorrectly concluded that Doe demands Meta to moderate sex trafficking content.“This case is not about content moderation,” Simons said. “Meta could have addressed the problems with Instagram by altering the defective design of the product and the operation of Instagram without toughing third-party content, and therefore, Section 230 never should have been applied.”The attorney pointed to a Ninth Circuit decision last year in a case against X, formerly Twitter. In that opinion, a different panel had found that X wasn’t immune under Section 230 against negligence and product liability claims that were premised on a purportedly defective reporting-infrastructure design because those claims didn’t arise from X’s role as a publisher.Section 230 shields social media platforms, online retailers and other internet businesses from liability for the content that users post them. The federal statute has been a formidable impediment for plaintiffs suing the likes of Meta, Google and TikTok over illegal practices, from drug dealing to sharing child sexual abuse material, that take place on their platforms.Simons argued that the Ninth Circuit’s Twitter decision was issued after the district judge in Oakland had dismissed Doe’s lawsuit. For the same reasons that the claims against X that pertained to the design of its infrastructure to report child pornography on the site were reinstated, he said, Doe’s product liability against Meta should be allowed to proceed.Kristin Linsley, Meta’s lawyer, told the panel that Does’ claims were different from those in the Twitter case, where the plaintiffs had repeatedly reported the child pornography images to X to no avail. As such, X was accused of failing to report the images to the National Center for Missing and Exploited Children as it was required to do under federal law.“In this case, the plaintiff doesn’t allege any of that,” Linsley said.Rather, she said, Doe’s claims were more akin to those of a Ninth Circuit decision earlier this year that had found that claims by Rohingya plaintiffs against Meta, including the lack of a Burmese-language platform interface meant users couldn’t report dangerous content, was barred by Section 230.U.S. Circuit Judge Kenneth Kiyul Lee, a Donald Trump appointee, pushed back against this comparison.“The plaintiffs in that case, the remedy they asked was for Meta to really look at the content or remove it,” Lee noted. “Here, they are just saying you need a better reporting mechanism.”Linsley, however, said Doe never claimed that she or anyone else tried to report the individual who groomed and trafficked her on Instagram, either to Meta or to law enforcement.“As much as one might entertain the idea of a hypothetical reporting claim, that somehow [could have] prevented the plaintiff’s harm here, she doesn’t allege that,” Linsley argued. “Her theory is entirely speculative — maybe there could have been a better reporting system and someone might have reported it.”Doe said in her lawsuit that she was a victim of horrific sex trafficking crimes on Instagram, where she was repeatedly sold for unlawful sex acts over the course of a year. Her trafficker was later convicted at a criminal trial and sentenced to 40 years in prison.The other two judges on the panel were U.S. Circuit Judges Salvador Mendoza Jr. and Ana de Alba, both Joe Biden appointees.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads