J.S. et al., Respondents, v. Village Voice Media Holdings, LLC, et al., Petitioners, 184 Wash. 2d 95

[As amended by order of the Supreme Court September 4, 2015.] González, J. ¶1 The plaintiffs before us have been the repeated victims of horrific acts committed in the shadows of the law. They brought this suit in part to bring light to some of those shadows: to show how children are bought and sold for sexual services online on Backpage.com in advertisements that, they allege, the defendants help develop. Federal law shields website operators from state law liability for merely hosting content developed by users but does not protect those who develop the content.

The plaintiffs allege that the defendants did more than just provide a forum for illegal content; the plaintiffs allege the defendants helped develop it. Taking the complaint as true, as we must at this point, we find that the plaintiffs have alleged sufficient facts that, if proved, would show that the defendants helped to produce the illegal content and therefore are subject to liability under state law. Accordingly, we affirm and remand to the trial court for further proceedings consistent with this opinion.

Facts ¶2 Advertisements featuring three minor girls, J.S., S.L., and L.C. (collectively J.S.), allegedly were posted on a website owned and maintained by Village Voice Media Holdings d/b/a Backpage.com, Backpage.com LLC, and New Times Media LLC d/b/a Backpage.com (collectively Back-page). J.S. allegedly was raped multiple times by adult customers who responded to the advertisements. ¶3 J.S. filed a complaint alleging state law claims for damages against Backpage and Baruti Hopson.

J.S. asserted claims for negligence, outrage, sexual exploitation of children, ratification/vicarious liability, unjust enrichment, invasion of privacy, sexual assault and battery, and civil conspiracy. Backpage moved to dismiss on the theory that it is immune from suit in relation to J.S.’s state law claims under the federal Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230.

J.S. countered by arguing that Backpage is not immune from suit in part because its advertisement posting rules were “designed to help pimps develop advertisements that can evade the unwanted attention of law enforcement, while still conveying the illegal message.” Clerk’s Papers (CP) at 201. The trial court denied the motion to dismiss, allowing J.S.’s case to proceed. Backpage moved for discretionary review. The Court of Appeals granted review and certified the case to this court for direct review. Order Certifying Case for Transfer, J.S. v. Vill. Voice Media Holdings, LLC, No. 44920-0-II (Wash. Ct. App.

July 17, 2014). ¶4 J.S. allegedly was featured in Backpage advertisements posted in accordance with instructions on Backpage’s website without any special guidance from Backpage personnel. J.S. alleges that all of the advertisements featuring J.S. complied with Backpage’s content requirements. ¶5 Backpage does not allow advertisements on its website to contain naked images, images featuring transparent clothing, sexually explicit language, suggestions of an exchange of sex acts for money, or advertisements for illegal services. In addition to these rules, specifically for advertisements posted in the “ ‘escort’ ”

section of its website, Backpage does not allow “any solicitation directly or in ‘coded’ fashion for any illegal service exchanging sexual favors for money or other valuable consideration,” “any material on the Site that exploits minors in any way,” or “any material . . . that in any way constitutes or assists in human trafficking.” CP at 9-10. Analysis A. Standard of Review ¶6 “A trial court’s ruling to dismiss a claim under CR 12(b)(6) is reviewed de novo." Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)).

At this stage, “we accept as true the allegations in a plaintiff’s complaint and any reasonable inferences therein.” Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998) (citing Chambers-Castanes v. King County, 100 Wn.2d 275, 278, 669 P.2d 451 (1983); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978)). “CR 12(b)(6) motions should be granted ‘sparingly and with care’ and ‘only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.’ ” Cutler v. Phillips Petrol.

Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994) (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988)). “Dismissal under CR 12(b)(6) is appropriate only if ‘it appears beyond a reasonable doubt that no facts exist that would justify recovery.’ ” In re Parentage of C.M.F., 179 Wn.2d 411, 418, 314 P.3d 1109 (2013) (quoting Cutler, 124 Wn.2d at 755). B.

Federal Preemption ¶7 J.S. alleges that Backpage facilitated the violation of numerous Washington laws, including violations of Washington’s laws against trafficking, commercial sexual abuse, and prostitution. ¶8 Federal law, however, preempts state law when state law “would stand ‘as an obstacle to the accomplishment of the full purposes and objectives of Congress’ in passing § 230 of the CDA.” Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1134 (E.D. Va.) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 110 L.

Ed. 2d 65 (1990)), aff'd, 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998). Applicable here, the CDA 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). ¶9 Under the CDA, an “information content provider” may be subject to state law liability in relation to content that it develops but an “interactive computer service” is immune from suit for state law claims in relation to merely hosting such content on a website. See Carafano v.

Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). ¶10 Accordingly, the CDA controls whether Backpage is immune from J.S.’s state law claims. The scope of CDA immunity is a matter of first impression for this court. C. J.S/s Claims Are Sufficient To Withstand the Motion To Dismiss ¶ 11 This case turns on whether Backpage merely hosted the advertisements that featured J.S., in which case Backpage is protected by CDA immunity, or whether Backpage also helped develop the content of those advertisements, in which case Backpage is not protected by CDA immunity.

A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is “responsible, in whole or in part” for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content. Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008) (citing Anthony v. Yahoo!

Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006)). A website operator, however, does not “develop” content by simply maintaining neutral policies prohibiting or limiting certain content. See, e.g., Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 968-69 (N.D. Ill. 2009). ¶12 Viewing J.S.’s allegations in the light most favorable to J.S., as we must at this stage, J.S. alleged facts that, if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content.

Those allegations include that (1) “Back-page.com . . . has intentionally developed its website to require information that allows and encourages . . . illegal trade to occur through its website, including the illegal trafficking of underage girls,” (2) “Backpage.com has developed content requirements that it knows will allow pimps and prostitutes to evade law enforcement,” (3) “Back-page.com knows that the foregoing content requirements are a fraud and a ruse that is aimed at helping pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false] appearance that Backpage.com does not allow sex trafficking on its website,” (4) “the content requirements are nothing more than a method developed by Backpage.com to allow pimps, prostitutes, and Back-page.com to evade law enforcement for illegal sex trafficking, including the trafficking of minors for sex,”

(5) Back-page’s “content requirements are specifically designed to control the nature and context of those advertisements so that pimps can continue to use Backpage.com to traffic in sex, including the trafficking of children, and so Back-page.com can continue to profit from those advertisements,” and

(6) Backpage has a “substantial role in creating the content and context of the advertisements on its website.” CP at 6, 8, 10, 12, 13. According to J.S., Backpage’s advertisement posting rules were not simply neutral policies prohibiting or limiting certain content but were instead “specifically designed ... so that pimps can continue to use Backpage.com to traffic in sex.” Id. at 12. ¶13 Given J.S.’s allegations, it does not appear “ ‘beyond a reasonable doubt that no facts exist that would justify recovery’ ” in this case; therefore, dismissal of J.S.’s claims under CR 12(b)(6) is not appropriate.

In re C.M.F., 179 Wn.2d at 418 (quoting Cutler, 124 Wn.2d at 755). It is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking to determine whether Backpage is subject to suit under the CDA because “a website helps to develop unlawful content, and thus falls within the exception to

section 230, if it contributes materially to the alleged illegality of the conduct.” Fair Hous. Council, 521 F.3d at 1168. Fact-finding on this issue is warranted. Conclusion ¶14 We find the plaintiffs have pleaded a case that survives the motion to dismiss. Accordingly, we affirm the trial court and remand for further proceedings consistent with this opinion. Madsen, C.J., and Johnson, Stephens, and Yu, JJ., concur. Hopson was found guilty of raping, assaulting, and prostituting one of the plaintiffs. J.S. did not pursue its action against Hopson. Appellant’s Opening Br. at 7 n.2.

Backpage removed this case to a federal district court based on diversity jurisdiction. That court remanded to state court.

RCW 9.68A.040 (sexual exploitation of a minor), .050 (dealing in depictions of minor engaged in sexually explicit conduct), .090 (communication with a minor for immoral purposes), .100 (commercial sexual abuse of a minor), .101 (promoting commercial sexual abuse of a minor), .103 (permitting commercial sexual abuse of a minor); RCW 9A.44.076 (rape of a child in the second degree), .079 (rape of a child in the third degree), .086 (child molestation in the second degree), .089 (child molestation in the third degree); RCW 9A.88.070 (promoting prostitution in the first degree), .080 (promoting prostitution in the second degree), .090 (permitting prostitution); RCW 9A.40.100 (trafficking); RCW 9A.28.040 (criminal conspiracy); RCW 9A.82.060 (leading organized crime).

An “information content provider’’ is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.’’ 47 U.S.C. § 230(f)(3).

An “interactive computer service,’’ however, is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.’’ 47 U.S.C. § 230(f)(2).