In re Facebook, Inc.

• Decision Date: 25 June 2021
• Docket Number: No. 20-0434,20-0434
• Citation: 625 S.W.3d 80
• Court: Texas Supreme Court
• Parties: IN RE FACEBOOK, INC. and Facebook, Inc. d/b/a Instagram, Relators

625 S.W.3d 80

IN RE FACEBOOK, INC. and Facebook, Inc. d/b/a Instagram, Relators

No. 20-0434

Supreme Court of Texas.

Argued February 24, 2021

OPINION DELIVERED: June 25, 2021

Jeremy Maltz, Scott Keller, for Amicus Curiae Washington Legal Foundation.

D. Adam Candeub, Kelly Jack Coghlan, Houston, for Amici Curiae Alliance to Counter Online Crime, National Center on Sexual Exploitation.

Bradley G. Hubbard, Dallas, Kelly S. Sandill, Houston, Scott A. Brister, Austin, Kristin A. Linsley, Anthony J. Moreno, Reagan W. Simpson, Collin Joe Cox, Houston, Allyson Newton Ho, Dallas, Kathryn E. Boatman, Houston, for Relator.

Warren W. Harris, Timothy F. Lee, Houston, David Echols Harris, Corpus Christi, L. Boyd Smith Jr., Pamela McLemore, Michael T. Gallagher, Houston, Louie Cook, Corpus Christi, Annie McAdams, Houston, Michelle Rose Meriam Blair, Matthew Parmet, Margaret E. Bryant, Houston, for Real Party in Interest.

Matthew E. Vigeant, Patrick J. Carome, Ari Holtzblatt, Nina Cortell, Dallas, for Amicus Curiae Internet Association.

Brent Webster, Houston, Kyle Highful, Bill Davis, Austin, Judd E. Stone II, Atty. Gen. W. Kenneth Paxton Jr., for Amicus Curiae State of Texas.

Gregory Abbott, Jeffrey Oldham, James Sullivan, for Amicus Curiae Abbott, Gregory.

Justice Blacklock delivered the opinion of the Court.

Facebook seeks writs of mandamus directing the dismissal of three lawsuits pending against it in district court. The plaintiffs in all three cases allege they were victims of sex trafficking who became entangled with their abusers through Facebook. They assert claims for negligence, negligent undertaking, gross negligence, and products liability based on Facebook's alleged failure to warn of, or take adequate measures to prevent, sex trafficking on its internet platforms. They also assert claims under a Texas statute creating a civil cause of action against those who intentionally or knowingly benefit from participation in a sex-trafficking venture. See TEX. CIV. PRAC. & REM. CODE § 98.002.

In all three lawsuits, Facebook moved to dismiss all claims against it as barred by section 230 of the federal "Communications Decency Act" ("CDA"), which provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3). Facebook contends that all the plaintiffs’ claims are "inconsistent with" section 230(c)(1), which says 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."

For the reasons explained below, we deny mandamus relief in part and grant it in part. The plaintiffs’ statutory human-trafficking claims may proceed, but their common-law claims for negligence, gross negligence, negligent undertaking, and products liability must be dismissed.

We do not understand section 230 to "create a lawless no-man's-land on the Internet" in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking. Fair Hous. Council v. Roommates.Com, LLC , 521 F.3d 1157, 1164 (9th Cir. 2008) (en banc). Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking. Congress recently amended section 230 to indicate that civil liability may be imposed on websites that violate state and federal human-trafficking laws. See Allow States and Victims to Fight Online Sex Trafficking Act ("FOSTA"), Pub. L. No. 115-164, 132 Stat. 1253 (2018). Section 230, as amended, does not withdraw from the states the authority to protect their citizens from internet companies whose own actions—as opposed to those of their users—amount to knowing or intentional participation in human trafficking.

Whether the plaintiffs can prove such a claim against Facebook is not at issue in this mandamus proceeding. At this early stage of these cases, we take the plaintiffs’ allegations as true and construe them liberally against dismissal. We hold only that the statutory claim for knowingly or intentionally benefiting from participation in a human-trafficking venture is not barred by section 230 and may proceed to further litigation.

As for the plaintiffs’ other claims, section 230 is no model of clarity, and there is ample room for disagreement about its scope. See generally Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC , ––– U.S. ––––, 141 S. Ct. 13, 208 L.Ed.2d 197 (2020) (statement of Thomas, J., respecting denial of certiorari). Despite the statutory text's indeterminacy, the uniform view of federal courts interpreting this federal statute requires dismissal of claims alleging that interactive websites like Facebook should do more to protect their users from the malicious or objectionable activity of other users. The plaintiffs’ claims for negligence, negligent undertaking, gross negligence, and products liability all fit this mold. The United States Supreme Court—or better yet, Congress—may soon resolve the burgeoning debate about whether the federal courts have thus far correctly interpreted section 230 to bar such claims. Nevertheless, the prevailing judicial interpretation of section 230 has become deeply imbedded in the expectations of those who operate and use interactive internet services like Facebook. We are not interpreting section 230 on a clean slate, and we will not put the Texas court system at odds with the overwhelming federal precedent supporting dismissal of the plaintiffs’ common-law claims.

Facebook's petition for mandamus relief is denied in part and conditionally granted in part. The human-trafficking claims under section 98.002 of the Civil Practice and Remedies Code may proceed in accordance with this opinion, but the common-law claims must be dismissed.

I. Background

This proceeding involves three separate lawsuits against Facebook based on similar allegations, which must be "taken as true" for purposes of deciding Facebook's motions to dismiss. TEX. R. CIV. P. 91a. The facts alleged in each plaintiff's live petition are summarized below.

Cause No. 2018-69816 (334th Dist. Ct.). Plaintiff was fifteen years old in 2012 when she was "friended" by another Facebook user with whom she shared several mutual friends. The user's profile featured photographs of "scantily-clad young women in sexual positions" with money stuffed in their mouths, as well as "other deeply troubling content." The user, who was "well over" the age of eighteen, contacted Plaintiff using Facebook's messaging system, which the two began using to communicate regularly. He told Plaintiff she was "pretty enough to be a model" and promised to help her pursue a modeling career. After Plaintiff confided in him about an argument with her mother, he again offered her a modeling job and proposed they meet in person. Shortly after meeting him, Plaintiff was photographed and her pictures posted to the website Backpage (which has since been shut down due to its role in human trafficking), advertising her for prostitution. As a result, Plaintiff was "raped, beaten, and forced into further sex trafficking."

Cause No. 2018-82214 (334th Dist. Ct.). Plaintiff was fourteen years old in 2017 and was a user of both Facebook and Instagram, which Facebook owns. She was contacted via Instagram by a male user who was "well over" eighteen years of age. Using "false promises of love and a better future," he lured Plaintiff "into a life of trafficking through traffickers who had access to her and sold her through social media." Her traffickers used Instagram to advertise Plaintiff as a prostitute and to arrange " ‘dates’ (that is, the rape of [Plaintiff] in exchange for money)." As a result, Plaintiff was raped numerous times. Following Plaintiff's rescue from the trafficking scheme, traffickers continued to use her profile to attempt to entrap other minors in the same manner. Plaintiff's mother reported these activities to Facebook, which never responded.

Cause No. 2019-16262 (151st Dist. Ct.). Plaintiff was fourteen years old in 2016 and used an Instagram account, on which she identified herself as fourteen years old. She was not required to verify her age or to link her account to that of a parent or guardian. Another Instagram user, a man of about thirty with whom Plaintiff was not acquainted, "friended" her on Instagram. Between 2016 and 2018, the man and Plaintiff regularly exchanged messages. The correspondence was part of his alleged efforts to "groom" Plaintiff to ensnare her in a sex-trafficking operation. In March 2018, he convinced Plaintiff to sneak away from her home and meet him. Upon meeting her, he took her to a motel, photographed her, and posted the pictures to Backpage. Plaintiff was then raped repeatedly by men who responded to her traffickers’ posting on the site.

Litigation Against Facebook. The plaintiffs in all three lawsuits ("Plaintiffs") brought essentially identical claims against Facebook. First, Plaintiffs allege Facebook owed them a duty to exercise reasonable care to protect them from the "dangers of grooming and recruitment on [its platforms] by sex traffickers." Plaintiffs argue that Facebook breached this duty by, among other omissions, its "[f]ailure[s] to warn" of those risks, "implement awareness campaigns" about "sex traffickers using its website," "verify the identity and/or age of users," "implement any safeguards to prevent adults from contacting minors," "report suspicious messages between a minor and an adult user," "require accounts for minors to be linked to those of adults," or "deprive known criminals from having accounts." "Facebook's duty could have been satisfied," Plaintiffs contend, "through warnings posted on users’...