Texas Supreme Court Recognizes Cause of Action Against Facebook Related to Sex Trafficking

June 28, 2021

By: Stephen B. Stern

     In In re Facebook, Inc., and Facebook, Inc. d/b/a Instagram, Relators, No. 20-0434, 2021 Tex. LEXIS 640 (Tex. June 25, 2021), the Texas Supreme Court dismissed a number of tort claims filed against Facebook for its alleged involvement in sex trafficking, but it allowed a statutory cause of action under Texas law to survive that permits individuals and entities to be held liable if they intentionally or knowingly benefit from participating in a sex-trafficking venture.  In reaching this conclusion, the Texas Supreme Court had to interpret Section 230 of the federal Communications Decency Act (“CDA”), which provides immunity to interactive computer service providers for certain types of claims.

     In In re Facebook, three lawsuits were filed against Facebook in Texas (state) district court by individuals who were the victims of sex-trafficking and who met their abusers through Facebook.  The lawsuits alleged tort claims for negligence, negligent undertaking, gross negligence, and products liability, and a statutory claim under TEX. CIV. PRAC. & REM. CODE § 98.002, which recognizes a cause of action against those who intentionally or knowingly benefit from participating in a sex-trafficking venture.  

     Each of the lawsuits alleged that the plaintiffs, who were underage girls, were contacted by Instagram and Facebook users who lured them to meetings that ultimately led to them being raped and subjected to sex trafficking.  In connection with the tort claims, the lawsuits alleged, among other things, that Facebook owed them a duty to exercise reasonable care to protect them from the “dangers of grooming and recruitment on [its platforms] by sex traffickers.”  They further alleged that Facebook breached that duty by failing to (1) warn of those risks, (2) “implement awareness campaigns” about “sex traffickers using its website,” (3) “verify the identity and/or age of users,” (4) “implement any safeguards to prevent adults from contacting minors,” (5) “report suspicious messages between a minor and an adult user,” (6) “require accounts for minors to be linked to those of adults,” or (7) “deprive known criminals from having accounts.”  With respect to the statutory claim, the plaintiffs further alleged that “Facebook breached [its] duty by knowingly facilitating . . . sex trafficking” by “creating a breeding ground for sex traffickers to stalk and entrap survivors,” “[r]aising advertising fees by extending its ‘user base’ to include sex traffickers,” “[i]ncreasing profits by not using advertising space for public service announcements regarding the dangers of . . . sex traffickers,” and “[i]ncreasing profit margins due to lower operation cost[s] by not implementing safeguards requiring verification of [users’] identit[ies].”

     Facebook moved to dismiss each of the lawsuits based on Section 230 of the CDA, which provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  Facebook further relied on Section 230(c)(1), which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  The district courts denied the motions, and Facebook responded by seeking mandamus relief in the court of appeals, which upheld the district court decisions to deny the motions to dismiss.  Facebook then petitioned the Texas Supreme Court for writs of mandamus to instruct the district courts to dismiss the claims.

     The Texas Supreme Court started its analysis by noting mandamus relief is appropriate only to correct “a clear abuse of discretion” for which a relator “has no adequate remedy by appeal.”  The court then proceeded to conduct a de novo review of the district courts’ interpretation of Section 230.  The court identified the question before it as whether the plaintiffs claims, as pleaded, “treat[ ]” Facebook “as the publisher or speaker” “of third-party content in conflict with [S]ection 230.”  The court succinctly stated that, if the claims do treat Facebook in such a manner, the claims may not be brought and must be dismissed.

     The Texas Supreme Court observed that Section 230 provides “dual protections” to interactive computer services by “ensuring that a website is not discouraged by tort law from policing its users’ posts, while at the same time protecting it from liability if it does not.”  It also observed that it is not clear from the text of the statute what Congress intended as a “publisher” or “speaker” of third-party content, but the Texas Supreme Court found abundant authority that favored construing the provision “broadly in favor of immunity.”  To this end, as a general matter, web service provides are not supposed to be “legally responsible for information created . . . by third parties” “if such providers ‘merely enable[d] that content to be posted online.’”  After analyzing some case authority that examined what it means to be a “publisher,” the Texas Supreme Court noted that “[i]mposing a tort duty on a social media platform to warn of or protect against malicious third-party postings would in some sense ‘treat’ the platform ‘as a publisher’ of the postings by assigning to the platform editorial or oversight duties commonly associated with publishers.”  It further noted that Congress, with the knowledge of judicial precedent regarding the interpretation of Section 230, has twice expanded the scope of Section 230’s immunity, once in 2002, and again in 2010.

     Upon concluding Section 230 immunity is to be broadly applied, the court found that the tort claims treated Facebook “as the publisher or speaker” of third-party communications, which required dismissal of the claims.  Despite the plaintiffs’ contention to the contrary, the court concluded that the tort theories sought to hold Facebook liable because it “passively served as an ‘intermediar[y] for other parties’ . . . injurious messages.”  Stated differently, the tort theories “seek to impose liability on Facebook for harm caused by malicious users of its platforms solely because Facebook failed to adequately protect the innocent users from the malicious ones.”  And the actions that the plaintiffs argued Facebook should have taken to prevent their injuries (e.g., warnings, restrictions on eligibility for accounts, removal of postings) are actions that courts have previously found to be the actions of a “publisher” for purposes of Section 230 immunity.  

     As for the statutory claim, the Texas Supreme Court reached a different conclusion.  The court first noted that the statute requires a defendant to “participate” in a sex trafficking venture, which connotes “more than mere passive acquiescence in trafficking conducted by others.”  To this end, the court relied on the “common [dictionary] meaning” of “participate” which is “[t]o be active or involved in something; take part.” (emphasis added by the court).  This definition also was supported by ample case authority.  When applying this definition, the Texas Supreme Court noted that many of the allegations in the petitions contended that Facebook failed to act in a manner to prevent harm to the plaintiffs, but some of the allegations alleged overt acts by Facebook that encouraged sex traffickers to use its platforms.  The court, for example, noted the plaintiffs alleged Facebook “create[ed] a breeding ground for sex traffickers to stalk and entrap survivors,” it “knowingly aided, facilitated and assisted sex traffickers, including the sex trafficker[s] who recruited [the] [plaintiffs] from Facebook,” and it “uses detailed information it collects and buys on its users to direct users to persons they likely want to meet [and,] [i]n doing so, . . . facilitates human trafficking by identifying potential targets . . . and connecting traffickers with those individuals.”  Based on these allegations, the court concluded that the plaintiffs alleged sufficient facts to bring their claims under the Texas statute and have the opportunity to proceed with their case.

     The court rejected Facebook’s argument that Section 230 immunity still applied.  To this end, the court found that the plaintiffs’ allegations do not treat Facebook as a publisher who bears responsibility for the content of third-parties; rather, the allegations seek to impose liability on Facebook for its own actions.  In addition, the court pointed to a 2018 law passed by Congress, the Allow States and Victims to Fight Online Sex Trafficking Act, that specifically recognized nothing in Section 230 should be construed to limit or impair a cause of action seeking relief for sex trafficking.  

     The Texas Supreme Court’s decision in In re Facebook is significant because it recognizes that social media and other internet platforms may be sued for claims based on their “involvement” with sex trafficking schemes that utilize their platforms.  With the various tort claims dismissed by the Texas Supreme Court in this case, however, it is unclear whether the court’s ruling that limits the reach of Section 230 immunity will result in a wave of litigation against social media and other internet platforms or whether the court’s ruling will have only a limited reach.  In addition, it is unclear at this point whether this ruling creates a road map to sue social media and other platforms for other harmful activity transacted on their platforms, such as drug trafficking.  This is an issue that warrants monitoring and likely will evolve with further litigation.