September 3, 2015
Backpage Loses In Washington’s Supreme Court
Backpage.com’s highly lucrative online sex advertising business suffered a devastating legal defeat in Washington State today. In a ruling that could have a profound impact on websites that promote illegal services, the Washington Supreme Court ruled that three minor girls who allege they were trafficked for sex on Backpage can move forward with their case against the website.
In 2012, the three girls filed suit in Pierce County, Washington, against Backpage and its parent company at the time, Village Voice Media Holdings, L.L.C. Their lawsuit alleges they were advertised for sex on the website and subsequently forced into child prostitution. At the time, two of the girls were in the seventh grade and one was in the ninth grade. Each had run away from home when they claim they were advertised and exploited through Backpage. One of the girls alleges she was forced to have sex approximately 20 times on a daily basis. In the past, Backpage and others have been successful at getting similar cases dismissed by claiming immunity under the Communications Decency Act of 1996 (“CDA”).
But in the majority opinion upholding an earlier decision by a trial judge, Washington Supreme Court Justice Steven C. Gonzalez wrote that this suit seeks to show that Backpage is more than just host for other people’s postings. Instead, Gonzalez stated that the girls “have been the repeated victims of horrific acts committed in the shadows of the law,” and that “[t]hey brought this suit in part to bring light to some of those shadows: to show how children are bought and sold for sexual services online on Backpage.com in advertisements that, they allege, the defendants help develop.”
Erik Bauer, a Tacoma attorney who represents the girls, believes the Court’s decision signals trouble for the website: “Backpage has claimed to the press and to the courts that it has some sort of system to prevent this illegal conduct, but its claims are defied by a few mouse clicks that show thousands and thousands of prostitution ads around the country. Almost every single advertisement is clearly for prostitution, yet Backpage and its lawyers claim the company is at the forefront of fighting prostitution. The Court today saw right through their smoke and mirrors.”
According to Jason P. Amala, a Seattle lawyer who jointly represents the girls with Bauer, the Court’s decision reflects the girls’ assertions that Congress never intended to give immunity to websites like Backpage.com. “The Washington Supreme Court today recognized that companies like Backpage.com cannot knowingly profit from sex trafficking just because they are a website. Congress never intended for the CDA to grant that sort of protection to websites.”
The girls’ lawsuit alleges Backpage knowingly created an online marketplace for sex trafficking, and then instituted “posting rules” to help sex traffickers develop their ads in a way that would evade law enforcement and promote prostitution. “Backpage.com developed these content requirements because it knows these methods will assist pimps and prostitutes in avoiding detection so that Backpage.com can continue profiting from their illegal activities,” the suit states. The lawsuit also states that Backpage profited from each ad, and that the site is the largest source of online sex trafficking in the country.
Amala’s law partner, Michael T. Pfau, takes issue with the company’s claim that it tries to protect children: “We allege the company knew for a long time that it was helping people advertise children for sex. The defendant’s lawyers and spokespeople want to talk about what it is supposedly doing now to protect children, but this lawsuit is focused on what it was doing before all of the public scrutiny. If Backpage genuinely wants to protect children, why did it hire lawyers to try to overturn a law that seeks to protect children?”