Littered with child sexual abuse, rape, image-based sexual abuse, violence against women, and themes of incest and racism. How did Pornhub get away with these atrocities for so long?
At NCOSE, our battle with this pornography giant has been grueling—yet it has been one of the most successful campaigns in our 60+ year history. As we, and powerful allies like Laila Mickelwait, brought more public attention to the company’s abusive practices, more people began to reject it: Advertisements were pulled from their sites, an explosive New York Times investigative piece revealed the vast amounts of child sexual abuse posted on Pornhub, and credit card companies stopped allowing payments to be processed for Pornhub subscriptions. Pornhub even mass removed millions of videos from its site that did not have any age or identity verification for the uploader.
The problem was that, even in the face of all this public pressure Pornhub still refused to commit to long-term, comprehensive reform.
“We saw that after that moment passed and time had gone on, they weren’t actually changing their policies… and some of these [unverified] videos actually ended up back on the site,” said Dani Pinter, chief legal officer and director of the NCOSE Law Center.
NCOSE also discovered that VISA was still processing payments with Pornhub’s ad company, TrafficJunky. TrafficJunky is really just the advertising department at Pornhub’s parent company, MindGeek/Aylo, and this is where Pornhub makes the majority of their revenue.
“Throughout our time as an advocacy organization, over 60 years, we realized that sometimes, it’s just not enough. Even if you get your goal of a lot of attention, a grassroots movement, and the attention of lawmakers and media, corporations can still resist to make changes that effect their bottom line,” said Pinter.
This is why we believe the linchpin to long-term, meaningful reform is civil litigation. Survivors of Pornhub needed to seek justice in the courtroom.
Class Action Suit on Behalf of Child Sex Trafficking Survivors
At 16 years old, when most kids’ biggest worries are whether they’ll make their high school basketball team or if get the lead role in the musical, Jane Doe was worried about something much more grave.
It was at this age that she was drugged and raped by an adult man. Not only did this man commit child sexual abuse, he also recorded the abuse and sought to make some money from it.
He engaged in a profit-sharing relationship with MindGeek, so that he could post videos of the abuse on Pornhub and share profits made from downloads and views. One video garnered over 2,400 views shortly after being posted.
The worst moments of Jane’s life: recorded, posted online, and monetized.
All while Pornhub did nothing. No attempts to verify her age or consent, inquire about her status as a sex trafficking victim, or make any attempt to protect her from her traffickers. Yet, Pornhub has repeatedly, publicly stated that they review every video uploaded to their site. They only cared about the money.
Jane Doe later became the representative of a class of potentially thousands of child survivors whose abuse was posted on Pornhub.
Since filing a class action lawsuit on Jane Doe’s behalf, we have seen incredible progress, including achieving class certification. The District Court’s certification of the class of victims means that all survivors of child sexual abuse material that was distributed on MindGeek websites are able to be a part of the lawsuit and collect damages if liability is found. “We’re talking tens of thousands of children,” said Benjamin Bull, General Counsel for the NCOSE Law Center.
Not a Fantasy
Rare Victory Overcoming Section 230
Another major victory in Jane Doe’s class action lawsuit was when Pornhub’s motion to dismiss and motion for summary judgment were denied. This historic victory places the case among the very few in history where child sexual abuse survivors have successfully overcome Section 230 of the Communications Decency Act by suing online platforms for facilitating their exploitation.
Bull explains, “Remember, [Section 230] is the federal law that grants total immunity to online platforms for content uploaded by third parties …. But … the federal court denied or dismissed their motion to dismiss. They said you are not immune under CDA 230 [a.k.a. Section 230], you can be held accountable. This case goes forward. Again, that was a history-making moment.”
Pornhub did much more than passively host third party content. Their employees actively participated in the creation and promotion of illegal content, including child sexual abuse material (CSAM, or “child pornography” under the law), specifically through generating enticing thumbnails for videos. It is illegal to possess, create, or distribute child sexual abuse material. NCOSE lawyers argued that not only was Pornhub violating the law by allowing CSAM to be distributed on the site, but for every piece of CSAM that was uploaded, Pornhub generated a thumbnail image for it, essentially creating an additional CSAM image, which is also illegal. At that point, Pornhub’s argument that all of the CSAM content posted on their site was done exclusively by third parties fell apart, and the court agreed.
Since this and other lawsuits, Pornhub has changed their policy to prevent downloads on the website, a major win which will prevent abusive content from being downloaded and published elsewhere, retraumatizing survivors. They also implemented policies for verifying age and consent. While this is a good thing, we remain highly skeptical of the efficacy of the verification methods Pornhub employs and see it as mostly a PR effort. Nonetheless, real changes are being made, and we must continue the fight to ensure these changes last and continue to improve.
Section 230 is Still Shielding Pornhub; It Must be Repealed
Unfortunately, while the class action lawsuit in Alabama has successfully overcome Section 230, a different judge ruled to toss out another NCOSE Law Center case against Pornhub and xHamster, Does 1-9 v. Murphy et al, saying that Section 230 gave the pornography sites immunity from liability. In this lawsuit, ten college women were secretly filmed showering and changing in their college locker room. The videos were uploaded to Pornhub, and Pornhub monetized them and promoted them with tags like “spycam.” Even though we overcame Section 230 in our class action lawsuit, this dystopian law is still serving as a shield for horrifically bad actors like Pornhub, and preventing survivors from receiving justice. It must be repealed.
CDA Section 230
What’s Next in the Legal Fight Against Pornhub?
The next step in Does 1-9 v. Murphy et al is to appeal the judge’s decision to toss out the case. We have seen recent success in appealing another case that was dismissed because of Section 230, so we press forward with hope.
As for the class action lawsuit, NCOSE lawyers are gearing up for trial, the last phase of the case. “We are very confident heading into trial and look forward to supporting our courageous client through that process.” says Pinter.
Jane Doe and her fellow class members have asked for both monetary damages and injunctive relief to force Pornhub via court order to enact permanent policy changes—like robust age and consent verification—to ensure that the exploitation they endured would not happen to anyone else. This means if Jane Doe wins at trial she will not only achieve justice and accountability from Pornhub, but also systemic changes to the Pornhub website. These systemic changes through court orders (injunctions) have been effective in other cases to not only address problems identified with a specific defendant, but to reform entire industries. The tobacco industry and opioid crises are two good examples.
“Because of the courage of our brave young client, and the relentless work of her dedicated legal team, we believe she will be victorious. Victorious in not only achieving justice for herself and fellow class members, but in changing this entire industry, and ultimately the world, for the better.” said Pinter.
Donate to the NCOSE Law Center to Hold Pornhub & Other Exploiters Accountable
As the NCOSE Law Center represents all our survivor clients free of charge, your support is a big part of what makes the lawsuits against Pornhub and other major exploiters possible. Please consider becoming a monthly donor to the NCOSE Law Center, to provide sustainable fuel to see these lawsuits through to the finish line!
