OLYMPIA — The website Backpage.com may not be immune from state liability law and a lawsuit filed by three young girls who said they were sold as prostitutes on the website can proceed to trial, the Washington Supreme Court ruled Thursday.
In a 6-3 decision, the justices said the federal Communications Decency Act does not protect Backpage from state lawsuits because of allegations that the company didn’t just host the ads, but helped develop the content.
“The plaintiffs before us have been the repeated victims of horrific acts committed in the shadows of the law,” said Justice Steven Gonzalez, writing for the majority. “They brought this suit in part to bring light to some of those shadows: to show how children are bought and sold for sexual services online on Backpage.com in advertisements that, they allege, the defendants help develop.”
The case should proceed because the girls have alleged facts that, if proved, would show that Backpage helped produce illegal content, the justices said.
Erik Bauer, the girls’ lawyer, praised the decision.
“It says it’s not legal to help pimps sell kids, even if you’re a website operator,” Bauer told The Associated Press.
Jim Grant, a Seattle lawyer representing Village Voice Media Holdings and Backpage.com, did not immediately respond to a request for comment.
The lawsuit filed in Pierce County Superior Court claimed Backpage.com markets itself as a place to sell “escort services” but actually provides pimps with instructions on how to write an ad that works.
Bauer said the girls were in the 7th and 9th grades when adult professional sex traffickers sold them as prostitutes on Backpage. The pimps knew they could run the ads anonymously, he said. The suit claims negligence, sexual exploitation of children, invasion of privacy, sexual assault and civil conspiracy.
Backpage filed a motion to dismiss the suit, arguing it isn’t responsible for the actions of subscribers or users and the federal law makes them immune from liability. A lower court denied that request and Backpage appealed.
Grant told the Supreme Court in October that when Congress wrote the Communications Decency Act, it wanted to preserve free speech on the Internet so it gave immunity to websites like Backpage for things posted by users or members of the site. Backpage does not create the ads, and holding it responsible would chill that speech, he said.
The justices in the majority decision disagreed.
Federal law shields website operators from state law liability if the site is just hosting content that was created by users, the justices said.
`”It is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking to determine whether Backpage is subject to suit under the CDA,” Gonzalez wrote. A website that helps develop illegal content falls under an exception in the federal law, he said.
Bauer said the next step is to set a date for a jury trial.
Justice Sheryl Gordon McCloud, writing for the dissent, said the lawsuit should be dismissed because the pimps wrote the ads, not Backpage personnel.
Congress gave immunity to “interactive service providers” but not for “content providers,” she said.
“Critically for this case, a person or entity does not qualify as an information content provider merely by facilitating an individual user’s expression of information, if it is the user alone who selects the content,” McCloud wrote.
Washington Attorney General Bob Ferguson praised the ruling.
“Today’s decision is an important victory in the long-running fight to combat sex trafficking of minors,” Ferguson said in a statement.
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