Court rejects Pornhub parent company's motion to dismiss sex trafficking lawsuit

An Alabama federal judge has denied Pornhub parent company MindGeek's motion to dismiss a lawsuit brought against the company on behalf of two sex trafficking victims. 

Plaintiffs' attorneys are seeking injunctive relief for the class members, which would require MindGeek, the owner of various pornography websites, to put additional website protections in place such as user verification.

"We are encouraged by the Court’s order," Levin Papantonio Rafferty (LPR) partner Kim Adams said in a Friday statement.

The two plaintiffs identified as Jane Doe No. 1 and Jane Doe No. 2 accuse MindGeek of "violating federal sex trafficking and child pornography laws by owning, operating, controlling, and profiting from websites that provide public video platforms to share and view illegal child pornography" in the lawsuit filed February 2021.

The plaintiffs say they were under 18 when they were allegedly "depicted in commercial sex acts and child pornography, which was then made available for viewing on websites owned or operated by the Defendants," which are named as MindGeek and MG FREESTIES, LTD doing business as Pornhub.

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Plaintiffs' attorneys argue the defendants violated the Trafficking Victims Protection Reauthorization Act.

The complaint alleges that Mindgeek's Pornhub website generated more traffic than Amazon and Netflix in 2019, and that some of the subjects in videos posted to the website involve children being raped or assaulted. It cites an example in which the mother of a missing 15-year-old girl identified her daughter in 58 videos on the pornography website in 2019.

Pornhub submitted more than 4,000 videos to the National Center for Missing and Exploited Children in 2020, according to the lawsuit, but plaintiffs argue the defendants underreported Child Sexual Abuse Material (CSAM).

Plaintiffs also allege MindGeek and Pornhub profited off of CSAM by and making exploitative material searchable through tags and keywords like "crying teen," "abused teen" and "middle school girls," according to the complaint. 

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Pornhub touts 100 billion video views a year, or "about 12.5 porn videos per person on earth" and more than 100 million visits to its website every day.

In the judge's order to reject MindGeek's July 2021 motion to dismiss the lawsuit, he stated that "if Plaintiffs’ allegations are confirmed, Defendants, through their ownership and operation of Pornhub and other sites, are no different than the thousands of individuals who are convicted of non-production child pornography offenses in the United States each year."

MindGeek has argued that under Section 230 of the 1996 Communications Decency Act, which shields websites from being held liable for content third-party users post on their platforms, it should not be penalized for third-party content posted on its websites.

"This putative class action … attempts to shift legal liability from Plaintiffs’ assailants to MG Freesites Ltd ("Freesites") and certain of its affiliates (collectively, "Defendants") for allegedly owning, operating, and controlling websites that provided a public video platform the perpetrators used to share their video content," defendants' motion to dismiss states. 

The motion alleges that "Plaintiffs’ claims are barred by Section 230."

Judge Scott Coogler, however, said protections offered by Section 230 are not applicable because child pornography is illegal contraband.

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Additionally, the motion states that defendants "do not permit, let alone encourage, the posting of CSAM or non-consensual content on their websites" under their terms of service.

"To the contrary, Freesites has taken a number of steps to combat the practice. While the specific procedures have evolved over time, the Complaint acknowledges that Freesites actively screens for videos containing CSAM or nonconsensual content, and that Pornhub retains full-time moderators to screen for CSAM and other inappropriate content. While no content moderation process for user-generated content is ever perfect, Freesites has worked diligently to prevent CSAM and non-consensual content from being uploaded to the sites it operates, and to remove videos that violate the Terms of Service when violations are detected," the motion states.

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Pornhub purged the majority of its user-submitted content – largely from unverified accounts – in 2020 ahead of implementing a more strict verification process in 2021. There are about 20 million registered Pornhub users.

"As part of our policy to ban unverified uploaders, we have now also suspended all previously uploaded content that was not created by content partners or members of the Model Program," Pornhub announced in a statement on its website.