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NO. 2018-69816*
IN THE DISTRICT COURT OF

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vs.
Facebook, Inc; et al

HARRIS COUNTY, TEXAS

334th JUDICIAL DISTRICT

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Jane Doe

NO. 2018-82214
Jane Doe,

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334th JUDICIAL DISTRICT '

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Facebook, Inc., dba Instagram, Inc. et
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HARRIS COUNTY, TEXAS

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IN THE DISTRICT COURT OF

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Defendant Facebook seeks dismissal of these two cases pursuant to 91a of the
Texas Rules of Civil Procedure. This motion is one of several procedural preliminary
hurdles that the parties advise will be filed and argued in these cases prior to full
litigation of the underlying claims. While a ruling in Facebook's favor may end the case
for Facebook, a ruling for the Plaintiffs only allows the case to proceed to the next level.

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Rule 91 a reqLlires dismissal of a claim if the action "has no basis in law or fact. A
cause of action has no basis in law if the allegations, taken as true, together with
inferences reasonably drawn from them, do not entitle a claimant to. the relief sought. A
cause of action has no basis in fact if no reasonable person could believe the facts
pleaded." Tex. R. Civ. p, 91a.1. The Court may not consider evidence, but only the
allegations in the petition and arguments of counsel in their motions and responses. At
this stage, Facebook is not arguing the facts, but rather claims it is not liable to the
Plaintiffs because of the immunity granted internet service providers under Section 230
of the Federal Communications Decency Act, 47 U.S.C. § 230 (the "Act").

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47 USC § 230(c)(1) provides: "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." In 2018, Congress added exclusions to this
broad grant of immunity to ensure that sex trafficking laws were not impacted. The
parties debate the extent of the exclusions.
The parties do not dispute that Facebook is an interactive computer service as
defined in the statute at 47 § USC 230(f)(2). The question presented to the Court is

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 whether the claims raised by Plaintiffs treat Facebook as the publisher or speaker of
information provided by another.

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Plaintiffs have brought causes of action sounding in negligence, gross
negligence and statutory damages under the Texas Civil Practice and Remedies Code '
Chapter 98, which allows for damages from persons who engage in trafficking or
knowingly or intentionally benefit from such traffic. Plaintiffs contend that Facebook
facilitates and/or was used by predators to find, groom, target, recruit and kidnap
children into the sex trade. Plaintiffs allege that Facebook profits from the collection of
data and the use of the data to target and promote interactions between Facebook
users. These interactions include minors and sexual predators. Each of the Plaintiffs
are victims of human trafficking to whom Plaintiffs contend Facebook owes a variety of
duties which have been breached leading to the Plaintiffs being victimized in human
trafficking. Plaintiffs contend they are not seeking to impose liability for the publication
of the third party communications, but rather they seek to impose liability for Facebook's
independent actions or failure to act, specifically failure to warn, negligence in
undertaking to protect potential victims of sex trafficking, and for knowingly facilitating
and benefiting from the sex trade.

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Facebook contends that all of Plaintiffs' claims turn entirely on the
communications Plaintiffs had with malicious third parties. Because Plaintiffs' injuries
are dependent on those communications, Facebook contends they are all barred by the
immunity granted internet service providers under the Act.

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The language of the statute is broad and both parties have cited cases that
support their positions. Facebook points to the broad grants of immunity articulated in
Zeran v. America Online Inc. 129 F.3d 327 (4 th Cir. 1997) (republishing defamation) and
Doe v. MySpace, Inc. 528 F.3d 413 (5th Cir. 2008) (negligence-failure to implement
safety measures), among others. Plaintiffs points to the more narrow immunity
recognized in Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016) (ISP not immune
to failure to warn claim) and Huon v. Denton, 841 F.3d 733 (J'h Cir. 2016) (ISP not
immune to defamation in content it generated).

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While the injuries presented in the 9th and 5th Circuit cases are similar to those
presented in this case, the failure to warn cause of action presented in this case mirrors
that presented in the 9th Circuit case. None of the cases deal with the statutory cause of
action pled in this case, and all of the cases pre-dated the amendments adopted in
2018.
The few Texas cases that have addressed the issue come out of the Beaumont
Court of Appeals and none of these deal with the same causes of action or facts as are
presented in this case. See Milo v. Martin, 311 S.W.3d 210 (Tex. App.-Beaumont
2010, no pet.) (defamation); GoDaddy.com LLC v. Toups, 429 S.W.3d 752 (Tex. App.Beaumont 2014, pet. denied) (intentional infliction of emotional distress); and, Davis v.
Motiva Enterprises LLC, No. 09-14-00434-CV, 2015 WL 1535694 (Tex. App.Beaumont April 2, 2015, pet. denied) (failure to supervise employees' internet use).

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In reviewing the statute and the cases cited by the parties, the Court concludes
that Plaintiffs have plead causes of action that would not be barred by the immunity
granted under the Act. Accordingly, Defendants' Rule 91A Motions to Dismiss are
denied.

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Signed:
5/23/2019

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STEVEN KIRKLAND
Judge Presiding

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