A cooing baby, a smiling toddler, a laughing child, a creative teenager—abusers should not be allowed to strip them of their innocence. Yet, according to the United States Sentencing Commission, there continues to be a rampant growth of child pornography reports—422% over the last fifteen years. With the rising tide of Child Sexual Abuse Material (“CSAM”) comes a lifetime of re-victimization—a permanent record of the victim’s abuse for everyone online to see. Children are also left to deal with the psychological damage—i.e., potential disruptions in mental development, issues with self-image, and difficulties building trusting relationships with others—inflicted by their abusers.

In response to the ever-increasing dissemination of child pornography on the internet, Congress amended Section 230 of the Communications Decency Act in 2018, passing the Fight Online Sex Trafficking Act (“FOSTA”). Generally, Section 230(c)(1) of the Communications Decency Act protects internet platforms from being held liable for their users (or third parties’ online actions). Specifically, it states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”1 By passing FOSTA, an exception to § 230 was created, allowing internetplatforms to be held liable for their users’ conduct if they promote or facilitate prostitution and sex trafficking.2 Further, such an amendment, in theory, would provide victims with recourse as FOSTA integrates two sections of the Trafficking Victims Protection Reauthorization Act (“TVPRA”)—specifically, 18 USC §§ 1595(a) and 1591(a)–which provide for civil and criminal causes of action, respectively.

But the Ninth Circuit may have just made Congress’ efforts futile. On October 24, 2022, the United States Court of Appeals for the Ninth Circuit affirmed a lower court’s dismissal of Jane Does, No.1–6; John Does, No. 2, 3, and 5 v. Reddit, Inc.—ultimately holding that Section 230 of the Communications Decency Act shielded Reddit from liability. This class action against Reddit, Inc. (“Reddit”) pertained to Reddit’s users’ posts and circulation of child pornography onits platform.3  This case “stems from an April 2021 lawsuit in which Jane Doe sued Reddit after an abusive ex-boyfriend repeatedly posted and circulated pornography of her that he filmed with and without her consent while she was underage.”4

In that lawsuit, Doe’s ex-boyfriend’s crude and disparaging posts–some of which invited the platform’s users to film themselves performing sexual acts to the images—were removed by Reddit once Doe reported the videos. However, Doe’s repeated attempts at policing the Reddit platform for these videos and pictures­—stating she had not consented to distribution and was underage—resulted in the same issue. Her ex-boyfriend would repost the video again, even after Reddit banned his original account, by creating new accounts. Unwilling to help, even after knowing that the images were being posted from the same IP Address, Doe was left with the task of policing thirty-six subreddit pages. Similarly, other victims like Doe seeking recourse and justice filed this class action.

Unfortunately for these victims, the Ninth Circuit Court reasoned that dismissal of this class action against Reddit was proper, stating that:

FOSTA’s immunity exception is contingent upon a plaintiff proving that a defendant-website’s own conduct—rather than its users’ conduct–resulted in a violation of 18 U.S.C. § 1591. [] FOSTA requires that a defendant-website violate the criminal statute by directly sex trafficking or, with actual knowledge, ‘assisting, supporting, or facilitating’ trafficking, for the immunity exception to apply.5

That said, this court decided that FOSTA’s immunity exception did not apply in this case as the Plaintiffs, Jane Does, No.1-6; John Does, No. 2, 3, and 5, did not even allege that Reddit knowingly—with actual knowledge—benefited from or participated in a sex trafficking venture. Additionally, the Ninth Circuit “noted that an earlier draft of FOSTA would have likely allowed the plaintiffs to defeat the Section 230 defense, but the amendment passed changed last minute.”6 According to Kendra Albert, an instructor at the Cyberlaw Clinic at Harvard Law School, Congress modified the language last minute because it “was worried about the potential for really widespread civil liability and the chilling of all kinds of user-generated content online.”

Consequently, victims of child pornography are stuck dealing with the cruel reminder of their abusers’ actions—at least until Congress makes changes to the law or other courts decide differently. In the meantime, platforms like Reddit are likely to be shielded from its users’ conduct by asserting a Section 230 defense.