Despite compelling public policy concerns in certain situations, courts continue to show that getting past immunity under the Communications Decency Act will be no easy feat. A Massachusetts federal court followed that trend on May 15th when it decided the overall design of Backpage.com, which allegedly accommodated child sex traffic advertising, could not form the basis for claims against the site’s operator. The content of ads, not the site’s design, created the link between former child prostitutes’ claims and the site operator, which wasn’t enough to supersede CDA immunity.

Three anonymous victims of child sex trafficking, who were the topics of ads posted by pimps in the adult entertainment section of Backpage.com, were raped as minors because of the ads. The court found the victims’ claims did not sufficiently establish Backpage.com as an “information content provider.” An information content provider is any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

The court also found that, while unsavory, Backpage.com’s conduct was neither affirmative participation in an illegal venture nor active Web content creation sufficient to cut through the site’s immunity. The court distinguished this case from a prior case involving a Web site designed to assist people in finding roommates. In that case, the site had a pulldown menu that allowed users to filter roommate criteria based on race and sexual orientation, which is a violation of federal housing law. Unlike that situation, Backpage.com did not require or specifically offer searches for minors. According to the court, the sponsored ads simply reflected the illegality of the underlying posts and not the site as a whole.

Although the result may be undesirable, the reasoning behind is at least partially defensible. The strength of CDA immunity may be compromised if courts begin to find Web sites accountable for illegal conduct of unrelated and autonomous third-parties. Doing so would open the flood gates to much more meritless claims.

On the other hand, that immunity can leave legitimate victims of crime—including particularly heinous crime like what happened here—with little to no recourse where the truly responsible parties cannot be identified or are uncollectible. While courts seem reluctant to encroach on the sanctity of CDA immunity, there may be a better place to draw the line to preserve immunity while also placing some responsibility on sites that willfully turn a blind eye to blatantly illegal content.

Special thanks to my Partner, Stacy Cole, and Graydon's Summer Associates, Ben Greiner and Ean Harris, for doing the legwork on these articles.