There’s no doubt you can procure an escort’s services on Backpage.com. There is also evidence that underage sex workers have been using the site to find customers. However, a California court has ruled that — contrary to allegations made by the state’s attorney general — Backpage’s hosting of these ads is not the same as actual pimping.
Back in October, California AG Kamala Harris accused Backpage.com CEO Carl Ferrer, along with shareholders Michael Lacey and James Larkin, with conspiracy to commit pimping. Ferrer faced additional charges of pimping, and pimping a minor.
In the state’s criminal complaint, prosecutors cited histories of a number of sex workers — including several under the age of 18 — who had been contacted by undercover investigators through Backpage.
The defendants then sought to have the charges thrown out, arguing that they were protected by both the First Amendment and the Communications Decency Act (CDA). That law includes a “safe harbor” for websites and other online services that can shield them from liability for things published on their sites by third parties.
Late last week, a Superior Court of California judge in Sacramento County ruled [PDF] that the CDA does indeed protect Ferrer and the other defendants from the apparently illegal services being advertised on Backpage.
To be shielded by the CDA’s safe harbor, a site must demonstrate that they are being wrongfully treated as the publisher or speaker of content produced by someone else.
For example, you probably can’t punish Instagram as the publisher of all those stealth ads posted by its users — even though those ads may violate federal laws prohibiting misleading advertising. Similarly, you’d have a very difficult time prosecuting a news site for libelous or threatening statements made by users in comments on news items.
However, in the Backpage case, the state argued that the company had crossed the line into publisher when it took the escort ads posted on Backpage.com and remade them into new content on two other sites — EvilEmpire.com and BigCity.com — also run by Backpage. The state claimed that this manipulation of the third-party ads into new content, specifically intended to generate revenue for Backpage, was the act of a publisher and therefore not protected by the CDA.
This argument didn’t win over the judge, who noted that because the “substance of the ads came from the original ad placed on Backpage, the only ‘manipulation’ would be in the act of extracting the content from the original ad and/or from the act of physically posting the extracted content on a new site. This is not prohibited activity. Indeed, it generally falls within the scope of protected editorial functions.”
While the new listings on the “escort service phone directory” EvilEmpire.com were effectively no different from what was found on Backpage, the state pointed out that the reposted content on BigCity.com had been completely stripped of reference to sex work and was being made to appear as profiles for online dating.
Again, the judge didn’t see this as a problem.
“[A]ssuming that the People’s assertion is true; that the ad went from expressing intent to advertise prostitution to express a desire to ‘date,’ the People are essentially complaining that Backpage staff scrubbed the original ad, removing any hint of illegality,” explains the ruling. “If this was the alleged content ‘manipulation,’ the content was modified from being illegal to legal. Surely the AG is not seeking to hold Defendants liable for posting a legal ad.”
The judge acknowledged that Backpage has made money from the ads placed on its site, but that does not legally make the company responsible for the services sold by the people placing those ads.
“In short, the victimization resulted from the third party’s placement of the ad, not because Backpage profit[ed] from the ad placement,” explained the judge, concluding that, “Congress has spoken on this matter and it is for Congress, not this Court, to revisit.”
by Chris Morran via Consumerist