National Post (National Edition)
MINDGEEK HOPES SECTION 230 WILL SHIELD IT FROM U.S. LAWSUITS.
MindGeek, the company behind some of the world's biggest porn sites, has led a fractured existence over the last year. At this time last summer, it had a Big Tech reputation and a balance sheet to match. As with Google and Facebook, MindGeek was flourishing in the pandemic, sucking in and pumping out even more gigabytes for a locked-down audience of millions. There were hackathons for MindGeek employees and a small-business ad program for COVID19-stricken businesses. Its corporate website, devoid of even oblique references to its core product, instead emphasized its SEO abilities and Big Data prowess.
Then came a reckoning. In December, The New York Times published a Nicholas Kristoff opinion piece about the company, focusing in large part on Serena Fleites, who says she was 14 when sexually explicit images of her appeared on MindGeek's flagship site Pornhub, sending her into a spiral of shame, drug abuse and homelessness. Pornhub “is infested with rape videos,” wrote Kristoff.
MindGeek's reputation tumbled. Visa and Mastercard partially suspended their payment services, and though the company purged over 75 per cent of Pornhub's content, it did little to stanch the torrent of lawsuits, bad press and political ire. Suddenly, Pornhub was no longer the cheeky, techy porn purveyor doling out free premium memberships to lift users from their COVID-19 blues.
In February, two women filed a class-action lawsuit against MindGeek in Alabama. In the suit, Jane Doe #1 alleged a man drugged and raped her when she was 16 years old, then posted the ensuing video to MindGeek-owned websites. Jane Doe #2 said she was 14 when she started getting trafficked to producers of sexually explicit videos, who posted material of her as a minor to MindGeek-owned sites.
In a motion to dismiss the lawsuit, filed earlier this month, MindGeek admitted the men's alleged conduct in producing the videos was “heinous, disturbing, and almost certainly criminal.” But, it argued, it shouldn't be held liable for what is uploaded to its sites. Like Facebook, YouTube and other tech platforms, its stock in trade is user-generated content — and thus the company contends it is protected by U.S. law, specifically the increasingly infamous Section 230 of the United States' Communications Decency Act.
By invoking Section 230, the Montreal-founded, Luxembourg-headquartered MindGeek could play a key role in shaping the messy contours of internet-era free speech in the United States.
Cemented into U.S. law in 1996, the meaty part of Section 230 consists of 109 words, though most people only pay attention to the following 26: “No 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.”
Essentially, the statute says that a site hosting thirdparty content is the internet equivalent of a newsstand, not a newspaper. Many argue that the immunity allowed by this bit of legalese fostered the modern, all-encompassing web on which we all rely — The Twenty-Six Words That Created the Internet, as cybersecurity-law assistant professor Jeff Kosseff called them in his book.
MindGeek invokes Section 230 more than 60 times in its motion to dismiss the case, comparing itself to YouTube, Facebook and other decidedly more blue-chip denizens of the internet. Many observers believe the company is on solid legal ground. “I think the cleanest analogy would be something like YouTube, in that YouTube allows users to upload videos, and is eligible for Section 230 protections for those uploaded videos.
And if Pornhub operates in a similar way, then it should qualify for the same treatment,” Eric Goldman, a law professor at Santa Clara University's High Tech Law Institute, told me. (MindGeek did not respond to a request for comment before publication.)
Section 230 is vital for the existence of social media platforms. It lets them remove offensive content, yet shields them from liability when some of that offensive content slips through. When I first wrote about MindGeek last October, I spent a day combing the company's sites for content that seemingly went against its own terms of service. I found plenty, and was therefore surprised when a spokesperson told me that the company had enough human moderators to “manually review every single upload.”
I now understand why. Section 230 allows MindGeek to at once say it “has instituted an industry-leading trust and safety policy to identify and eradicate illegal material,” as a Pornhub representative said in December, and also to remind the world that we're all human, mistakes happen, and ignorance can be bliss. (Incidentally, Pornhub removed much of the offending content that I flagged, which I guess counts as human moderation.)
Yet not all is well and calm in the Section 230 pasture. The Texas Supreme Court recently ruled that Facebook wasn't immune to sex-trafficking lawsuits, after three plaintiffs brought separate suits against the company. Section 230 doesn't “create a lawless no-man's-land on the internet,” wrote Justice Jimmy Blacklock, adding that internet platforms could be held “accountable for their own misdeeds.” Though they are perhaps acres apart on the respectability scale, Facebook and MindGeek face a near-identical legal problem, in that some of their money-making content is now a potential legal liability.
In Washington, there are several efforts now afoot to reform Section 230, from both sides of the political divide. The discontent over the law that rumbled away during the Trump years has boiled over since the Jan. 6 attack on the Capitol, and Trump's subsequent deplatforming. A trio of Democratic senators are now pushing what they call the Safe Tech Act, which would strip platforms of immunity in the face of lawsuits alleging stalking and harassment, or violations of international human rights laws. Other Democratic efforts seek to curb immunity in the case of civil rights violations. Republicans, meanwhile, are seized with the notion that tech platforms discriminate against conservatives, and have introduced legislation that would go after such alleged algorithmic unfairness. Even the likes of Mark Zuckerberg concede it might be time Section 230 got a makeover.
While Washington gridlock may limit the prospects of reform, any new, high-profile example of Section 230's perceived flaws could alter the playing field. At a conference last week, legal experts suggested that companies would be increasingly reluctant to make Section 230 arguments, lest they inadvertently give America's political class reason to overcome their political divisions.
Finally, there's FOSTA. In 2018, the U.S. House passed the “Allow States and Victims to Fight Online Sex Trafficking Act,” better known by its acronym. Together with the Senate's Stop Enabling Sex Traffickers Act (SESTA), FOSTA is designed to make it illegal to knowingly assist in, facilitate or support sex trafficking.
The law, which supporters say gives law enforcement the power to police websites and allow sex-trafficking victims to go after those sites that facilitate their abuse, has free-speech advocates fuming. “FOSTA is so broad that it potentially makes sites that post third-party content liable for any crimes facilitated on these sites,” Aaron Mackey of the internet-advocacy group Electronic Frontier Foundation told me. Many sex workers, too, say that in conflating consensual sex work and sex trafficking, the laws hamper their ability to safely seek out and screen clients online.
And yet because FOSTA-SESTA is so new, exactly how it is meant to be interpreted is an open question to be answered by cases like the one filed in Alabama. The lawsuit against MindGeek “is definitely one of the test cases” of FOSTA, as St. John's University assistant law professor Kate Klonick told me. (In its Alabama motion to dismiss, MindGeek claimed FOSTA doesn't apply in its case because, among other reasons, the plaintiffs couldn't show that the company “had actual knowledge of that [alleged] trafficking.”)
Regardless of the outcome, and any potential political fallout from its Section 230 arguments, MindGeek can't avail itself of the same defence for all its legal ailments. One of the litany of class-action lawsuits against the company was filed in Montreal, where 230's tech-friendly niceties don't apply. And a former MindGeek executive who keeps tabs on the company told me it's suffered as a result of its self-inflicted content purges. Fewer videos, fewer eyeballs, fewer dollars, in other words.
And yet it carries on. MindGeek is hiring like crazy, despite its fall from grace, and the few MindGeek employees I've spoken with since the New York Times piece was published have a studied detachment from the raison d'être of the company paying their salaries. Everything is content, and there remains a lot of it to push out.
YET NOT ALL IS WELL AND CALM IN THE SECTION 230