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Big Tech gets wake up call from Texas high court on liability for online sex trafficking

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The Texas Supreme Court ruled in a Friday decision that the social media platform Facebook can be held liable if sex traffickers use the platform to target children.

The court’s decision was tied to three Texas-based lawsuits involving teenage victims of sex trafficking, according to the Houston Chronicle. The court found that Facebook is not a “lawless no-man’s-land” and could be held responsible for content tied to the illegal activity.

“We do not understand Section 230 to ‘create a lawless no-man’s-land on the internet’ in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking,” the majority wrote. “Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that Section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking.”

The victims will be allowed to move forward with their lawsuits because Facebook was in violation of a provision of the Texas Civil Practice and Remedies Code. The victims claim the social media platform “benefited from the sexual exploitation of trafficking victims” according to Fox 23 News.

“We’re reviewing the decision and considering potential next steps. Sex trafficking is abhorrent and not allowed on Facebook. We will continue our fight against the spread of this content and the predators who engage in it.” Facebook said in a statement.

The ruling comes as the debate over Section 230 heats up. The longstanding internet law prevents online platforms from being accountable for thirdparty content posted on their website.

“When Congress decided to amend Section 230 to combat the scourge of online sex trafficking, it did so with a scalpel, not a hammer — carefully enumerating precisely the types of claims that would be exempt from Section 230. The balance Congress struck is embodied in the language it used. Congress is free to alter that balance by amending that language. But this Court doesn’t sit as a super legislature to rewrite the statute under the guise of divining legislative ‘purpose.’” Facebook’s defense team argued in their initial brief.

“But regardless of what plaintiffs contend Facebook should have done about that third-party content — prevent it, block it, remove it, edit it, flag it, or warn about it — the purported duty to take action that undergirds plaintiffs’ claims derives from (Facebook’s) role as a publisher, which is why these claims are prohibited by Section 230.” Facebook’s lawyers concluded.

The Human Trafficking Institute reported that the majority of online recruitment in active sex trafficking cases in the United States last year transpired on Facebook.

“The internet has become the dominant tool that traffickers use to recruit victims, and they often recruit them on a number of very common social networking websites. Facebook overwhelmingly is used by traffickers to recruit victims in active sex trafficking cases.” Victor Boutros, the Institute’s CEO, told CBS News.

President Trump claimed Section 230 unfairly targeted conservatives, allowing Democrat’s dominance online, but following January 6th, Democrats have a more vested interest in the reform.

If Congress takes up Section 230 reform, an increasingly bipartisan issue, social media websites could be held accountable for what third parties publish on their platform.

Kay Apfel

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