Last week, in Doe #1 et al. v. MG Freesites Ltd. et al., No. 7:21-cv-00220-LSC, 2022 WL 407147 (N.D. Ala. Feb. 9, 2022), the Northern District of Alabama permitted plaintiffs to proceed with a proposed class action against Pornhub for allegedly profiting from child sex trafficking and exploitation videos uploaded to its platform.  The claims were brought under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) and federal child sexual abuse material statutes.  U.S. District Judge L. Scott Coogler rejected Pornhub’s defense that section 230 of the federal Communications Decency Act shields it from liability for plaintiffs’ claims.  Section 230 generally immunizes “interactive computer service[s]” from liability for content provided by third parties.  47 U.S.C. § 230(c).

Instead, the court agreed with plaintiffs’ argument that Pornhub acted as an “information content provider” and as such, was not entitled to section 230 immunity.  Citing the Ninth Circuit’s ruling in Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), which the court noted has been adopted by other circuits, Judge Coogler held that section 230 immunity is limited to “interactive computer service[s]” that display content created by third parties, and does not extend to platforms acting as “information content providers” that are “responsible, in whole or in part, for the creation or development of the offending content.”  Doe #1, 2022 WL 407147 at *15 (citing Roommates, 521 F.3d at 1162 (internal marks omitted)).  In Roommates, the Ninth Circuit set forth the following test for determining whether a website acts as an information content provider: “[a] website helps to develop unlawful content and thus falls within the exception to section 230 [immunity] if it contributes materially to the alleged illegality of the conduct.”  Roomates, 521 F.3d at 1168. 

Applying that test, the Alabama court noted the plaintiffs’ allegations that Pornhub itself “generate[s] tags, categories, and keywords” to help users seeking child sexual abuse material (“CSAM”) locate such material, sometimes even using coded tags to make CSAM visible to users who search for it.  Doe #1, 2022 WL 407147 at *16.  The court also pointed to plaintiffs’ allegations that Pornhub creates at least some of the CSAM on its platform, including thumbnails of videos as well as timelines that allow viewers to jump to labeled scenes in videos, and that Pornhub controls the content on its platform by giving uploaders “extensive instructions” about what content to create and uploads.  The district court’s ruling indicates that platforms could face liability if they go beyond “merely encourag[ing] the posting of CSAM by providing a means for users to publish what they created” and instead “materially contribute to it by designing their platform for an illicit purpose.”  Id.

Photo of Alexandra Cooper-Ponte Alexandra Cooper-Ponte

Alexandra (Ali) Cooper-Ponte’s practice focuses on regulatory, enforcement, litigation, and investigations matters involving emerging technologies and national security. She advises clients on compliance with surveillance, cybersecurity, and data privacy laws and on trust and safety issues.

Prior to re-joining the firm, she clerked…

Alexandra (Ali) Cooper-Ponte’s practice focuses on regulatory, enforcement, litigation, and investigations matters involving emerging technologies and national security. She advises clients on compliance with surveillance, cybersecurity, and data privacy laws and on trust and safety issues.

Prior to re-joining the firm, she clerked for Judge José A. Cabranes, United States Circuit Judge of the United States Court of Appeals for the Second Circuit. She also worked on electronic surveillance and law enforcement access issues at a large technology company prior to law school.

Photo of Simon Frankel Simon Frankel

Simon Frankel specializes in complex civil disputes and copyright and trademark litigation, with an emphasis on the technology and consumer products sectors.

Simon is co-chair of Covington’s Copyright and Trademark practice group and managing partner of the firm’s San Francisco office.

He has…

Simon Frankel specializes in complex civil disputes and copyright and trademark litigation, with an emphasis on the technology and consumer products sectors.

Simon is co-chair of Covington’s Copyright and Trademark practice group and managing partner of the firm’s San Francisco office.

He has led defense of numerous consumer class actions, including unfair competition and false advertising claims under California Business and Professions Code Section 17200. He has served as lead counsel to numerous Internet service providers in putative class actions asserting privacy claims where dismissals were obtained at the pleading stage.

Notably, Simon led a Covington team that won a landmark trial victory for John Deere’s green and yellow color brand, obtaining the first ruling ever that a color trademark was famous for trademark dilution purposes and securing a broad permanent injunction.

In addition to his litigation practice, Simon assists clients on a range of digital copyright and computer access issues, anti-counterfeiting efforts, and policy work before the U.S. Copyright Office.

He is also a recognized authority in the field of art law, where he has handled disputes involving cultural property claims, title issues, moral rights claims, and resale royalties and also advised on a range of fine art transactions. He teaches a class on Art and the Law at Stanford Law School. Simon is recognized by Chambers as a leading lawyer in their Art and Cultural Law category.

Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.