Courts continue to struggle with the application of CDA immunity to shield service provider defendants from liability in extreme cases. In this case, the Washington Supreme Court, in a 6-3 decision, affirmed the lower court’s decision to allow a suit to proceed against classified service surrounding the sexual assault of several minors by adult customers who responded to advertisements placed in the “Escorts” section of the website. (See J.S. v. Village Voice Media Holdings, L.L.C., 2015 WL 5164599 (Wash. Sept. 3, 2015).  This opinion is notable in that courts have usually (although sometimes reluctantly) resolved these struggles by extending broad immunity, even when the facts presented are unsympathetic, or, as the dissent in J.S. noted, “repulsive.”   Indeed, in a case from earlier this year, Backpage was granted CDA immunity in a dispute resting on similar facts. (See Doe No. 1 v., LLC, No. 14-13870 (D. Mass. May 15, 2015)).  Why was this case decided differently?

This issue in this case turns on whether Backpage merely hosted the advertisements that featured the minor plaintiffs, in which case Backpage is protected by CDA immunity, or whether Backpage also helped develop the content of those advertisements, in which case Backpage is not protected by CDA immunity.  When viewing the plaintiffs’ allegations in a favorable light at this early stage of the litigation, the majority of the court found that the plaintiffs alleged facts that, if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content and acted as an “information content provider” in surreptitiously guiding pimps on how to post illegal, exploitative ads.

The dissenting justices would have ruled that Backpage qualified for CDA immunity because a person or entity does not qualify as an information content provider merely by facilitating a user’s posting of content, if it is the user alone who selects the content.  In the dissent’s view, the plaintiffs are seeking to hold Backpage liable for its publication of third-party content and harms flowing from the dissemination of that content (i.e., Backpage’s alleged failure to prevent or remove certain posted advertisements), a situation that should fall under the CDA.  The dissent also pointed out that Backpage provides a neutral framework that could be used for proper or improper purposes and does not mandate that users include certain information as a condition of using the website.

What are the lessons learned?  CDA immunity is generally a robust affirmative defense against claims related to the publication of third-party content.  However, as this case illustrates, courts may look for ways to circumvent the CDA in certain unsavory cases, particularly in the early stages of the litigation.  Even if the interpretation of CDA immunity in this case may turn out to be an outlier and the CDA ultimately is deemed to protect, the opinion – issued from a state supreme court – should prompt service providers to take heed.  In light of this decision, website operators that provide forums for user-generated content might reexamine their policies related to the creation of user-generated content and the filtering out or management of illegal content to determine whether the site itself could be reasonably alleged to be “inducing” and perhaps even “developing” any questionable content posted by users.