The controversial FOSTA/SESTA law, which was signed into law of April of 2018 by Donald Trump, was widely seen as an all-out attack on Section 230 of the 1996 Communications Decency Act, a law generally considered the foundation of the internet, as Vox.com explains. Section 230 establishes that no “provider or user of an interactive computer service” can be held legally responsible for “information” posted or provided by somebody else.
Section 230 is the law that makes open communication online possible, because it means that internet service providers, web hosting services, or social media and blogging platforms are not forced to police and censor every user on their services to prevent defamation, “obscenity,” or other uses that could be legally questionable—a task that would for all practical purposes be impossible.
But FOSTA/SESTA changed all that, at least when it comes to “sex trafficking.” Under FOSTA/SESTA service providers and platforms could, in fact, be held responsible for third-party activities that are deemed to "promote" “sex trafficking,” as AVN.com has reported. But the law’s fuzzy definition of “sex trafficking,” not to mention "promote," created a situation where almost any sexual or adult content could fall under the Section 230 FOSTA exception.
A decision issued March 27 by the federal Second Circuit Court of Appeals in New York, however, provides some encouragement for advocates on open internet communications. In the decision, available online at this link, the court—though not specifically ruling on FOSTA—held that Section 230 protected an online platform, the gay dating site Grindr, from being held liable for the harmful behavior of a Grindr user.
In the case, Herrick v. Grindr, New York City resident Matthew Herrick sued Grindr after a jilted boyfriend created a series of fake profiles for Herrick on Grindr. In response to the phony profiles, more than 1,000 men showed up at Herrick’s home, the restaurant where he worked, or contacted him by text message demanding a variety of violent and drug-fueled sexual encounters, the lawsuit said. According to an account by LGBTQ Nation, Herrick became convinced that the ex-boyfriend intended the men who found him via the fake Grindr profiles to sexually assault him.
Herrick said that he complained to Grindr more than 50 times, but the platform managers took no action to stop the harassment. So Herrick sued Grindr—in a lawsuit filed months before FOSTA became law—claiming that Section 230 did not protect Grindr, because the app was, essentially, a defectively manufactured product.
The three-judge appeals court panel disagreed.
In their ruling, the judges affirmed that Section 230 disallowed lawsuits that try to hold an “interactive computer service” responsible for “offensive content” posted by a third-party user, even if the service refuses to remove the content when made aware of it, according to Socially Aware, a news site covering the legal and business aspects of social media.
“While Section 230 continues to face headwinds both in the courts and legislatively, Herrick shows that the statute continues to provide robust immunity for social media sites and other platform providers and online intermediaries,” write Socially Aware bloggers Aaron Rubin & Charles Cartagena-Ortiz. “Indeed, it is amazing to think that, more than 20 years after its enactment, Section 230 continues to serve its original purpose of enabling online services to thrive without the threat of crippling liability for the bad acts of their users.”
Whether the law will continue to serve its purpose when challenged by a lawsuit brought under FOSTA/SESTA, however, remains unclear.
Photo by Grindr.com / Wikimedia Commons Public Domain
