Victims' Class Action Against Pornhub Certifed by Federal Judge

TUSCALOOSA, Ala.—A federal district judge in Alabama certified a class action lawsuit on Tuesday against the parent companies of Pornhub, Aylo (formerly MindGeek), and its affiliated firms for engaging, directly and indirectly, in criminal activity like human sex trafficking. According to the filing, Chief U.S. District Judge L. Scott Coogler for the Northern District of Alabama sided with the plaintiffs in this particular case. Coogler ordered that a certified class of victims who were minors when their abusers unlawfully posted the abuse imagery to Pornhub's site can claim damage ranging from February 12, 2011 to the present day. "Out of respect for the integrity of court proceedings, our policy is not to comment on ongoing litigation," an Aylo spokesperson told AVN in an email, declining to comment further. "We look forward to the facts being fully and fairly aired in that forum." The first "Jane Doe" named as a plaintiff in the lawsuit claims she was recorded as a minor while being sexually abused, and the abuser posted the videos to Pornhub. Coogler declared that the proposed class action is "adequately defined and clearly ascertainable" for potentially thousands of members joining the initial "Jane Doe." The laws being cited in the lawsuit include two particular statutes.  These two laws are the Trafficking Victims Protection Reauthorization Act (TVPA) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA-SESTA). The TVPA enhances protections for victims of child sexual abuse material and violence victims. The second law is the controversial Trump-era FOSTA-SESTA law that civil society groups including the Woodhull Freedom Foundation, Electronic Frontier Foundation, Foundation for Individual Rights and Expression, and the American Civil Liberties Union—contend is unconstitutional. On the same note, Woodhull and a coalition of these groups sued to render FOSTA unconstitutional because the law was written overly broad and censored First Amendment-protected forms of speech, including legal pornography. "Plaintiff requests that the court award damages and issue injunctive and equitable relief, including requiring defendants to identify and remove CSAM and implement corporate-wide policies to prevent continued dissemination of CSAM on their platforms," Judge Coogler, an appointee of former President George W. Bush, declared. Coogler added that Aylo cannot use the safe harbor found in Section 230 of the Communications Decency Act of 1996 as a method to immunize itself from the acts of third parties, including a veritable class of criminal actors circulating illegal material on an otherwise legal platform. FOSTA completely gutted this protection. Coogler's order is distinct from similar cases filed by survivors of sex trafficking in courts in California. These cases are Doe v. Reddit and J.B. v. G6 Hospitality, according to Law360. These two cases were dismissed because the presiding judges found that the website owners and operators weren't liable because they weren't content providers, following a more traditional Section 230 interpretation. Coogler essentially considers Pornhub as a content provider. The certification of the federal class action by Judge Coogler comes weeks after Aylo announced that the U.S. Attorney's Office for the Eastern District of New York has declined to charge the company and individuals involved at the time in a 30-month-long investigation into Pornhub's affiliation with the GirlsDoPorn-MomPOV sex trafficking scheme. According to a statement, Aylo is not facing criminal charges and has instead agreed to a pending Deferred Prosecution Agreement that would require the company to undergo significant policy, culture and platform administration changes throughout Aylo's affiliated firms. One requirement of the agreement is to include an independent monitor to assess its overhauled compliance program and compliance with the DPA. “We have zero tolerance for illegal material and the agreement demonstrates that we take our responsibilities very seriously,” said Solomon Friedman, vice president for compliance and a partner at Aylo ownership group Ethical Capital Partners, in a statement at the time.  “This is reflective of our personal and corporate values. Day in and day out, Aylo’s trust and safety, and engineering teams work collaboratively with law enforcement, advocacy groups, and other stakeholders to prevent online abuse and to hold those abusers to account." Judge Coogler notes the efforts of the platform to overhaul Aylo's trust and safety program and compliance framework. "Indeed, although defendants describe a variety of technological tools that they now use that were developed in recent years that were designed to detect CSAM before it is viewable to the public, plaintiff contends that these new moderation practices and tools remain ineffective in eliminating CSAM on Pornhub and the other sites," Coogler wrote in the filing. It is likely that the Deferred Prosecution Agreement, which has a span of three years, includes settling and resolving lawsuits like this one.