The Texas Supreme Court ruled Friday that Facebook can be held liable for sex traffickers who use the social media platform to recruit and prey on children. The court ruled in favor of three Houston civil actions involving teenage sex trafficking victims. All three victims said they met their traffickers through Facebook’s messaging functions.

The women are now adults who say that they were recruited as teenagers through Facebook apps and trafficked for sex. They say that Facebook gave credibility to the traffickers and provided “a point of first contact between sex traffickers and these children” and “an unrestricted platform to stalk, exploit, recruit, groom, and extort children into the sex trade.” The young women sued Facebook for negligence and product liability. They claim that Facebook failed to warn them about sex trafficking or try to prevent it on their platform. They also claim that Facebook benefited from the sexual exploitation of the trafficking victims.

The Texas Supreme Court ruled that Facebook is not a “lawless no-man’s-land”. The justices ruled the lawsuits can go forward against Facebook for violating a provision of the Texas Civil Practice and Remedies Code passed in 2009. Facebook lawyers argue that it is not liable. Facebook says it is shielded by Section 230 of the federal Communications Decency Act. Section 230 states that what users say and write online is not the same as the publisher sending the same message. Facebook claims immunity from these lawsuits. The Texas Supreme Court ruled against that claim of immunity.

The majority wrote, “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.”

“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,” the opinion said. “Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking.”

The justices explained that Congress recently amended Section 230 to add the possibility of civil liability for websites that violate state and federal human-trafficking laws. They said under the amended law states may protect residents from internet companies that knowingly or intentionally participate in human trafficking through their action or inaction.

In other words, Facebook is covered under Section 230 for protection against what its users say online but it is not covered under Section 230 for protection against its own actions. Facebook didn’t protect teenage sex trafficking victims from its users.

The lead attorney for the young women describes the court’s decision as “groundbreaking”. This is the first victory against Facebook on its claim of immunity under Section 230.

“While we have a long road ahead, we are grateful that the Texas Supreme Court will allow these courageous trafficking survivors to have their day in court against Facebook,” McAdams said. She said with the help of an anti-trafficking provision under the Texas Civil Practice and Remedies Code called Chapter 98, “We believe trafficking survivors in Texas can expose and hold accountable businesses such as Facebook that benefit from these crimes of exploitation.”

Facebook sees it differently. A spokesperson said, “Sex trafficking is abhorrent and not allowed on Facebook. We will continue our fight against the spread of this content and the predators who engage in it.”

This is a monumental win for sex trafficking victims over a social media giant. You can bet that other big platforms are paying close attention to how this plays out in the courts. All three women, then teenagers, cite the use of Instagram (a Facebook property) as a site used to recruit girls. They are recruited, groomed, and then when the traffickers meet the girls, they are photographed and their photos put in Backpage ads. Two of the then teenagers were 14 and one was 15 when they were recruited. In the case of one girl, after she was rescued, her profile continued to be used to lure in other girls. Her mother reported it to Facebook and says that Facebook didn’t respond to her.

Online recruitment has surged in recent years. One report finds that over half of online recruitment happens on Facebook. To mark the 20th anniversary of the Trafficking Victims Protection Act (TVPA), the Human Trafficking Institute released its 2020 Federal Human Trafficking Report. More cases were filed in 2020 than in the last two decades but prosecutions remain low.

Prosecutors filed more SEX TRAFFICKING PROSECUTIONS in 2020 than all FORCED LABOR PROSECUTIONS filed in the two decades since the enactment of the TVPA. Whereas there has been a steady increase in sex trafficking prosecutions since 2000, the number of forced labor prosecutions has remained low.

Prosecutors filed more human trafficking cases in 2020 than in 2019 but charged fewer defendants. The number of cases filed in 2020 INCREASED 11% to 165 following two years of decline. In contrast, the number of defendants charged dropped to 257, DOWN 8% from 2019.

In 2020, federal courts convicted the lowest number of defendants in human trafficking cases since 2012. In 2020, 163 DEFENDANTS were CONVICTED—an 89% CONVICTION RATE. This is
a 51% decline in convicted defendants from 2019.

Let’s hope the cases of these young women in Houston continue to move forward and justice is served.