Judgment in favor of ISP in 'revenge porn' case stands; Texas Supreme Court denies review

More than a dozen women who allege their nude photos were posted on “revenge porn” websites have had their claim against an Internet service provider dismissed, as the Texas Supreme Court has denied to review their case. 

Plaintiffs Hollie Toups, Margaret Noble, Marissa Jeffcott, Meeghan Falls, Kinsey Staudt, Mallory Petry, Marianne Taschinger, Caitlyn Lagrone, Jessica Dupuy, Taylor Barnwell, Kelsi Gook, Jillian Howard, Patricia Hinson, Corina Lummus, Marissa Deitz, Ashley Martin and Laramie Gilbert said sexually explicit photos of them were posted on the Internet without their permission.

“Revenge porn” is the term generally used for explicit photos publicly shared, often by ex-partners who want to shame or embarrass the women. The sites often include personal information about the women, like their full name and links to social media profiles.

Represented by Beaumont attorney John. S. Morgan, the plaintiffs filed suit against two websites, www.TEXXAN.com and www.TEXXANS.com on Jan. 18, 2013, in Orange County District Court. They also named GoDaddy.com LLC, the Internet hosting service for the operators of the two websites, as a defendant under the doctrine of civil conspiracy for joining with the websites. The women were seeking class action status.

Morgan wrote that the “express purpose of these websites’ content is to harass, humiliate, threaten its innocent victims and cause them severe emotional distress.”

“All ‘revenge porn’ websites engage in unlawful activities, and thus these websites do not have any protection under the First Amendment of the United States Constitution,” Morgan wrote.

GoDaddy wanted case dismissed, claiming the claims were barred under the Communications Decency Act.

In their complaint, the plaintiffs admitted that GoDaddy did not create the defamatory and offensive material, but they argued that because GoDaddy knew of the content, failed to remove it and then profited from the activity on the websites that it is “jointly responsible” for the plaintiffs’ damages.

The women also accused GoDaddy of invasion of privacy, intrusion on their right to seclusion, public disclosure of private facts, wrongful appropriation of their names and likenesses, false light invasion of privacy and civil conspiracy.

GoDaddy filed a motion to dismiss, arguing that it is immune from civil liability under the CDA because it is a provider of interactive computer services and cannot be treated as a publisher of content created by a third party.

But the plaintiffs argued that the “revenge porn” websites were not protected by the First Amendment and therefore not entitled to immunity under the CDA. The also argued that the CDA does not preempt their state law tort claims.

After a hearing, the Orange County District Judge Buddy Hahn denied GoDaddy’s motion to dismiss. But the judge did certify the case for expedited appeal on matters of law.

To support its argument that it is entitled to immunity, GoDaddy cited Section 230 of the Communications Decency Act, which states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

But the women argued that Section 230 does not preempt state law intentional torts, and because the immunity only applies if the website content qualifies for protection under the First Amendment. The CDA “does not protect conduct that is illegal or in violation of federal or state penal statute,” Morgan argued.

He wrote that the websites’ content “did not qualify for First Amendment protection as legal pornography.”

The appeals court reversed the trial court’s decision and remanded it back to Orange County for a judgment in favor of GoDaddy on April 10.

In the opinion signed by Justice Charles Kreger, the appellate court found that allowing the plaintiffs to assert any cause of action against GoDaddy for publishing content created by a third party or refusing to remove the content created by a third party would be “squarely inconsistent with Section 230.”

The plaintiffs submitted a petition for review to the Texas Supreme Court.

On Oct. 13, Aaron McKown, a California attorney representing GoDaddy, argued that the plaintiffs failed to raise any important unsettled question of law and asked that the high court deny the petition for review.

GoDaddy argued that Section 230 “broadly insulates online providers for claims based on third-party content.”

The Texas Supreme Court agreed, and denied the plaintiffs’ petition for review on Nov. 21.

Plaintiffs’ attorney Morgan did not return messages for comment.

On Tuesday, a Los Angeles man was sentenced to one year in jail for violating California’s revenge porn law by posting topless photos of his ex-girlfriend on her employer’s Facebook page.

 

Trial court case no. D-130018-C

Appeals court case no. 09-13-00285-CV

Supreme Court case no. 14-0408