Eleventh Circuit Rejects Federal Child Porn/Sex Trafficking Claims Against Video Chat Service Omegle
From M.H. v. Omegle.com LLC, decided yesterday by the Eleventh Circuit (Judges Andrew Brasher and Ed Carnes, joined as to the sex trafficking claim by Judge Barbara Lagoa):
The facts of this appeal underscore that the internet in general and social media in particular pose grave risks to children. When C.H. was eleven years old, a stranger connected with her through Omegle.com, an online social media platform that places people in video chatrooms. The stranger then tricked and threatened C.H. into making child pornography. Unfortunately, this problem is not unique to Omegle.com. Our precedents reflect that child predators use many other online platforms to find and exploit their victims.
Through her parents, C.H. sued Omegle.com LLC. She alleged that Omegle.com violated 18 U.S.C. § 2255, known as “Masha’s Law,” by knowingly possessing child pornography. She also sued Omegle.com for violating the Trafficking Victims Protection Reauthorization Act, which forbids knowingly benefitting from participation in a sex trafficking venture. The district court dismissed her claims under section 230 of the Communications Decency Act of 1996. That section provides that for purposes of civil liability, “[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by” a user.
C.H.’s appeal presents two questions of statutory interpretation. First, we must decide whether she stated a claim under Masha’s Law for the knowing possession of child pornography. We conclude that she has not. Second, we must decide whether C.H. can bring her sex trafficking claim because of an exception to section 230 under the Fight Online Sex Trafficking Act (“FOSTA”). We believe she cannot. The FOSTA exception applies only to conduct that meets the standard for criminal liability for sex trafficking. Here, C.H. does not plausibly allege that Omegle.com had actual knowledge that it benefited from sex trafficking, which is the standard for criminal liability. Accordingly, we affirm the district court….
Here’s the core of the court’s analysis rejecting the child pornography claims:
The complaint fulsomely recounts John Doe’s conduct in creating, accessing, and distributing child pornography, but it does not make comparable factual allegations about Omegle.com. Instead, C.H.’s parents allege that Omegle.com allowed its “website to become a means of online child exploitation despite the risk to children like C.H.” C.H.’s parents allege that, because child exploitation on Omegle.com is so pervasive, the company knew that people like John Doe would exploit its technology to connect with minors for the purposes of recording images of child pornography. Despite this knowledge, Omegle.com “paired C.H. with a stranger knowing that C.H. was a minor child at risk of becoming a victim of child pornography.”
These are disturbing allegations, but they are insufficient to state a claim against Omegle.com for possessing child pornography. First, the operative complaint does not allege that Omegle.com ever possessed or accessed the images that John Doe recorded. In fact, the complaint does not allege that Omegle.com even had the ability to access its user’s recordings in general or John Doe’s recordings of C.H. in particular. Second, and relatedly, there are no allegations that would support the conclusion that Omegle.com knowingly possessed or accessed John Doe’s recording knowing it was child pornography. We have held that liability under section 2252A requires a finding that the defendant knowingly possessed sexually explicit material and had knowledge that the subject of the material was a minor. But there are no factual allegations that suggest that Omegle.com knew it possessed John Doe’s recording of C.H. or knew anything about the content of that recording.
C.H.’s parents rely on Doe #1 v. MG Freesites, LTD (N.D. Ala. 2022), in
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