Federal Law Shields Backpage.com CEO From Pimping Charges

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By Alexis Kramer

Dec. 12 — The California Superior Court has dismissed pimping charges against the chief executive officer of classified ad site Backpage.com LLC, citing a federal law shielding online publishers from liability for third-party content ( People v. Ferrer , Cal. Super. Ct., No. 16FE019224, 12/9/16 ).

The court ruled that the alleged criminal activity occurred through advertisements that other people posted on the site. The law, Section 230 of the federal Communications Decency Act, protects Backpage CEO Carl Ferrer from the charges, the court said.

The Dec. 9 decision came as the U.S. Supreme Court weighs whether to review a decision by the U.S. Court of Appeals for the First Circuit that Section 230 protects Backpage from claims that it facilitated sex trafficking ( Doe v. Backpage.com LLC , U.S., No. 16-276, cert. petition filed 8/31/16 ). It is unclear whether the California court ruling will impact the Supreme Court’s decision to hear the Doe case.

“Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility are all traditional publishing decisions and are generally immunized under the CDA,” Judge Michael Bowman of the California court said.

Robert Corn-Revere, attorney for Backpage and a partner at Davis Wright Tremaine LLP in Washington, told Bloomberg BNA Dec. 12 that the ruling was a “victory for the rule of law.” He said the California Attorney General Kamala Harris “was well aware the charges were baseless but filed them anyway.”

Harris said in an e-mailed statement that she is exploring her options in the wake of the ruling. “The Communications Decency Act was not meant to be a shield from criminal prosecution for perpetrators of online brothels,” Harris said.

Not a Content Creator

Ferrer was arrested Oct. 6 after a state-level investigation found that many of the ads appearing in Backpage’s “escorts” section involved sex trafficking victims. Former Backpage owners Michael Lacey and James Larkin also were charged with conspiracy to commit pimping. Judge Bowman tentatively dismissed the charges Nov. 16.

The court rejected Harris’ argument that Section 230 didn’t protect the defendants because they manipulated the content of third-party ads and reposted them on two other websites. Reformatting original content to be posted on other sites is a traditional editorial function covered by Section 230, the court said.

The court also said the defendants weren’t content creators because Backpage didn’t require its users to enter unlawful information in their ads. The court cited Fair Housing Council of San Fernando Valley v. Roommates.com LLC, 9th Cir., 521 F.3d 1157, 4/3/08 , in which the U.S. Court of Appeals for the Ninth Circuit held that a roommate-matching site requiring users to answer questions about allegedly discriminatory housing preferences wasn’t protected under Section 230 for the unlawful user responses. The California court said that unlike in Roommates, Harris didn’t allege that Backpage elicited the allegedly unlawful content.

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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