LOS ANGELES—Counsel representing Aylo, the parent company of adult tube site Pornhub.com, has asked a federal district judge to end a class action lawsuit filed against the pornography company, reports Law360.com.
Aylo, which is still referred to by its former name MindGeek in this lawsuit, is accused of knowingly publishing child sexual abuse material (CSAM), including materials depicting anonymous "Jane Doe" victims in the class action.
Attorneys for both the plaintiffs and the defendants are jockeying before U.S. District Judge Wesley L. Hsu of the Central District of California in Los Angeles to keep the case alive or to dismiss it in its entirety.
In November 2023, a federal district judge certified the class action case against Aylo and its affiliated companies in a case led by a lead anonymous Jane Doe plaintiff.
The judge cited that the case would best be served as a federal class action complaint due to the complex nature and costs associated with normal litigation dealing with traumatic circumstances.
The plaintiffs say that Pornhub, at the time of her image-based sexual abuse, was a platform lacking safeguards to verify the age and consent of the performers in such content. Having initiated the lawsuit in 2021, Doe said that her ex-boyfriend uploaded videos of them having sex when she was a minor, aged 16, to Pornhub. The video garnered well over 30,000 views, and there was a significant delay in removing the content.
Jane Doe also alleges Pornhub turned a blind eye to CSAM on its sites in a bid to generate revenue and drive web traffic. It is worth noting that since December 2020, Pornhub and its parent company have gone through major restructuring and overhauls as it relates to their trust and safety programs. When acquired in 2023 by the Ottawa-based private equity firm Ethical Capital Partners, Aylo engaged in further restructuring and branding changes.
But this is inconsequential to the plaintiffs. Counsel for Doe argued with counsel for Aylo and its affiliated companies, even its premium studios subsidiary, over the certification of the class action earlier this month. Doe said that Pornhub and its affiliated platforms are reportedly designed to encourage the publication and distribution of CSAM.
The defendants maintain that Aylo didn't knowingly and intentionally engage in the commercialization of CSAM or online sex trafficking. Aylo counsel Michael Williams, an attorney for Quinn Emanuel Urquhart & Sullivan, told the court in a recent filing that there's no evidence that the company added tags and terms to videos like "young" or "teen." In fact, the use of such tags is a result of the user input to describe videos they publish to the platform.
Williams also told the court that Aylo had started a banned terms list on all of its sites and adopted countermeasures to prevent searches for potentially illegal content.
Terms that could potentially be used to search for CSAM or illegal materials are now met with warning pages. For example, the screenshot above that AVN grabbed from the platform directs users who search certain terms to anonymous, free therapy resources to prevent minor-attracted people from likely violating the law by searching for obscene, unlawful materials on the internet. In this case, it directs the user to the Stop It Now program.
Williams also cites a case from 2022 in support of exiting this class action case. He points to a decision that was reached at the U.S. Ninth Circuit Court of Appeals in San Francisco that involved Reddit and online sex trafficking.
The Ninth Circuit upheld a dismissal of a federal lawsuit involving Reddit and a Jane Doe who alleged that Reddit was liable but failed to show the popular content aggregation social network knowingly participated in illegal activity. Judge Hsu asked the plaintiffs, "I know your argument is that they can't be promoting it, but aren't we not supposed to be grading what they did to affirmatively prevent it from being uploaded in the first place?"
Hsu refers to the safe harbor provision in Section 230 of the 1996 Communications Decency Act (CDA). Counsel for the plaintiffs argues that Section 230 doesn't protect Aylo in this case. However, Hsu states that he can't allow a civil jury to issue a "grade" to Aylo/MindGeek's actions in preventing CSAM and illegal materials on its sites.
Ultimately, the defense is arguing that Aylo has a defense to prove that it did everything in its power to prevent CSAM and unlawful materials. Hsu has yet to rule on the argument from Williams, Law360.com reports.
