CHICAGO—Yesterday, NetChoice filed an amicus curiae brief in the case G.G. and Deanna Rose v. Salesforce.com, Inc. with the Chamber of Progress in support of Salesforce’s petition for a rehearing en banc in the U.S. Seventh Circuit Court of Appeals to prevent collateral censorship.
In 2019, a group of women who were tragically victims of a sex trafficking ring filed a lawsuit, not against Backpage—the website their perpetrators used to advertise the criminal conduct—but rather, against Backpage’s online customer relationship management (CRM) provider, Salesforce.com.
Salesforce provides software to hundreds of thousands of clients, including content-based platforms like Spotify, NBCUniversal and the Financial Times.
The victims argued that, because Salesforce served as Backpage’s CRM, it should be held responsible for aiding and abetting criminal conduct advertised on Backpage even though Salesforce had nothing to do with the underlying crimes and had no knowledge that Backpage hosted such advertisements.
When Congress amended Section 230 in 2018 with the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), it made sure to add a “knowing standard” – a requirement that defendants had knowledge of the criminal content they were hosting – to deter a deluge of litigation targeting legitimate, law-abiding intermediaries like Salesforce.
The case was first dismissed by a federal district court. Plaintiffs then appealed to the Seventh Circuit, which incorrectly reversed the district court’s holding earlier this month. The panel found that providing back-end software to a website which hosts illegal content is sufficient basis for liability – no knowledge of or participation in the criminal conduct being necessary.
Now, Salesforce is petitioning the Seventh Circuit for a rehearing.
NetChoice’s brief with Chamber of Progress makes three key points:
- Section 230 was passed to reinforce the First Amendment’s protections against collateral censorship;
- Section 230’s protections extend beyond end-publishers, like Facebook and Twitter, to providers of access software and other services that support publication, like payment processors, cloud services and customer relationship management tools; and
- Exposing law-abiding upstream software providers to liability for content they had no knowledge their clients were hosting would weaken the infrastructure digital media companies rely on to host content. This undermines the purposes of Section 230.
“Congress passed Section 230 to reinforce the First Amendment’s protection against collateral censorship on the internet. And when it amended Section 230 in 2018 with FOSTA, it made sure to add a scienter requirement so that upstream software providers, like payment processors and cloud services, could not be held liable for content they don’t know their clients are hosting. The Seventh Circuit panel’s holding undermines the text and purpose of both Section 230 and FOSTA,” said Nicole Saad Bembridge, Associate Director of Litigation. “To ensure Section 230’s protections don’t become a hollow guarantee in the Seventh Circuit, we ask the court to grant Salesforce a rehearing en banc.”
You can read the amicus curiae brief here.
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