With FOSTA, Lawsuits Against Adult Sites “Entirely Predictable”

The complaint is the latest in a series of lawsuits filed against adult industry companies and platforms, as well as relatively adult-friendly platforms like Reddit, alleging human trafficking and/or sex trafficking in one form or another.

While the nature of the claims and underlying causes of action vary, and each will rise or fall on its own facts and merits (or lack thereof), what unites the actions aimed at online platforms and stemming from user-generated content uploaded by third parties is clear: FOSTA-SESTA (hereafter simply “FOSTA”) paved the way.

Attorney Larry Walters, who is part of the legal team handling the Woodhull Freedom Foundation’s lawsuit challenging the constitutionality of FOSTA, told YNOT the “recent round of civil lawsuits brought against adult platforms was entirely predictable and a direct result of FOSTA carving out an exception to Section 230 immunity.”

“Prior to FOSTA, platforms were immune from civil liability based on misuse of their services for sex trafficking by third parties,” Walters explained. “In the current legal environment, platforms are exposed to massive liability if they recklessly contribute to sex trafficking activities by their users. Even Visa was named as a defendant in a recent complaint, despite their remote connection to the production of adult content.”

The exception to Section 230 created by FOSTA “puts platforms and other service providers in the impossible position of having to review every post, video, comment, and image on their servers or risk being potentially liable if they miss something,” Walters added.

“No large platform provider can undertake such a task on a minute-by-minute basis, with terabytes of data flowing through their servers,” Walters said. “The drafters of Section 230 recognized this dilemma over 20 years ago when they crafted the legal immunity. But public pressure motivated Congress to lift the immunity and now we have aggressive plaintiff’s attorneys looking to get rich by leveraging this new Achilles Heel bestowed by Congress.”

Walters noted that the Woodhull Foundation’s challenge to FOSTA is based in part “on the grounds that the liability imposed for sex trafficking activities under FOSTA fails to provide fair notice as to what is expected of online platform providers in regards to monitoring user-posted content.”

While we wait to see if Woodhull’s challenge to the law is successful, what can adult companies and platforms do to reduce their exposure to potential liability?

“Platform operators can try to mitigate their risks by integrating a variety of user age and identity verification tools and content moderation devices,” Walters said, while observing that “some of this technology can be expensive for smaller operators, which puts them at a disadvantage” and  “no system is foolproof.”

The bottom line, Walters said, is “there are some inherent risks in operating any platform that accepts adult content.”

Walters also observed that while most of the lawsuits that have been brought under FOSTA thus far have targeted adult and adult-friendly platforms “likely because the plaintiff’s lawyers believe they will be easy targets in jury trials,” he also noted that “a recent report indicates that Facebook is the number one platform for sex trafficking recruitment – not the adult platforms.” (YNOT observed the same in our coverage of the report earlier this month.)

“Regrettably, adult industry operators are again being targeted because of their celebration of human sexuality,” Walters said. “We expect this lawsuit trend to continue unless the courts enjoin FOSTA.”

Gavel stock photo by Sora Shimazaki from Pexels