PASADENA, Calif. — A proposed class of plaintiffs currently appealing a dismissed lawsuit against Reddit, alleging that the platform “knowingly benefits from lax enforcement of its content polices, including for child pornography,” filed an opening appellate brief this week renewing their claim that Section 230 protections should not shield the social media platform.
The original lawsuit, which cited FOSTA-SESTA and was filed in April 2021 by attorneys for pseudonymous Jane and John Does, was originally dismissed last October.
At that time, U.S. District Judge James V. Selna found that Section 230 shielded Reddit from allegations of “profiting off of child pornography” over user-generated content (UGC).
In late November, the lawsuit was revived through an appeal to the Ninth Circuit.
The ‘Should Have Known’ Doctrine
According to legal news site Law360, the lawyers representing the proposed class argued that Selna was wrong to dismiss the original lawsuit and that he misinterpreted Section 230.
“This case squarely fits under the plain language of Section 1595, a provision of the Trafficking Victims Protection Reauthorization Act,” the lawyers argued. “Plaintiffs’ amended complaint alleges in hundreds of detailed allegations that Reddit refuses to prevent, detect and remove known illegal content or ban repeat offenders who traffic in child pornography — all to Reddit’s profit.”
“For these reasons,” the opening brief added, “Reddit violated Section 1595 by ‘knowingly benefit[ting]’ from participation in a venture that it knew or ‘should have known’ was engaged in illegal trafficking.”
The April civil lawsuit was filed by class-action specialist attorneys Davida Brook, Krysta Kauble Pachman, Arun Subramanian and Steve Cohen, representing the firms Susman Godfrey LLP and Pollock Cohen LLP. Reddit had successfully invoked Section 230 to counteract the lawyers’ claims that it should be liable for user-generated content uploaded by third parties — in this case, content that allegedly depicted the underage Jane Doe in sexual situations.
The proposed class action lawyers now argue that Selna “compounded [his] error in holding that a plaintiff must allege that the website had the criminal mens rea of actual knowledge of the trafficking, rather than constructive knowledge [‘knew or should have known’].”
Legal observers have pointed out that lawyers seeking to find liability in platforms are increasingly appealing to this novel doctrine of “constructive knowledge,” as opposed to actual knowledge, with diverse results depending on the venue.
An Orchestrated Campaign of Lawsuits
As XBIZ reported in April 2021, after years of being targeted by religiously motivated anti-porn organization NCOSE for allowing any UGC involving sex, Reddit became the latest defendant in an orchestrated campaign of civil lawsuits attempting to challenge Section 230 protections in the name of protecting victims of sex trafficking.
Like similar lawsuits filed against Facebook, Twitter, Pornhub and WGCZ under NCOSE’s sponsorship, the Reddit lawsuit refers to an illegal video shot and uploaded by a third party. In each case, the third party is not part of the lawsuit. Instead, the plaintiff looks for a settlement from a large online platform that supposedly “promoted and monetized” the content.
Shortly before the original lawsuit was filed, Reddit CEO Steve Huffman stated during an interview with newsmagazine Axios HBO that his platform is “perfectly supportive” of pornographic content, as long as there was no involuntary sexualization or sexualization of minors.
