Trials & Litigation

Citing allegations of 'unimaginable suffering' by child sex-abuse survivors, judge allows class action against Pornhub

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A federal judge in California has certified a class action lawsuit alleging that online pornography companies were willfully blind to child sexual-abuse material that appeared on their websites. Image from Shutterstock.

Updated: A federal judge in California has certified a class action lawsuit alleging that online pornography companies were willfully blind to child sexual-abuse material that appeared on their websites.

U.S. District Judge Cormac Carney of the Central District of California certified a class of plaintiffs who were younger than age 18 when they appeared in a video or image uploaded to websites operated by Mindgeek USA Inc. and its affiliates, including the video-sharing platform Pornhub.

Pornhub is a “tube site,” meaning that much of its content comes from users who can share the revenue from their uploaded videos. The suit alleges that Mindgeek contributed to child sex-abuse by making the content easier to find, partly with playlist titles that included “less than 18” and by suggesting search terms such as “middle school girls.”

The lead Jane Doe plaintiff alleges that the websites’ policies failed to curb child sex-abuse material, partly due to a quest for profits. The suit alleges violation of federal and California sex-trafficking laws and a federal law banning the distribution of child pornography in interstate commerce.

Doe’s ex-boyfriend uploaded sex videos showing her at age 16. She is seeking statutory damages under Section 2255 of Title 18 of the U.S. Code, which allows child-pornography victims to sue for actual damages or for $150,000 in liquidated damages. Punitive damages are also available.

The Doe plaintiff is represented by Susman Godfrey. In a press release, the law firm said the case is the first to certify a class for the receipt and distribution of child pornography under Section 2255.

Common questions to be resolved in the class action include whether the defendants benefited from child sex-abuse material on their websites, whether their policies allowed or even encouraged the posting of such material, and whether they knew what was happening, Carney said in his Nov. 17 opinion.

Carney said a class action is a superior way to litigate claims regarding the defendants’ practices and polices related to child sex-abuse material.

“Coming forward as a survivor of child pornography and trafficking is an extremely difficult task,” Carney wrote. “Here, individual survivors face one of the world’s largest pornography companies, in an aggressive litigation posture, who have retained law firms with considerable reputations. … Few, if any, individual survivors could muster comparable resources, nor is there any guarantee they could find counsel willing to work pro bono or on a contingency basis.”

The defendants argued that individual plaintiffs had an adequate incentive to pursue claims on their own because the statutes at issue allow substantial damages.

“This assertion is troubling,” Carney said. “The concern in this case has never been that individual damages are too small to warrant any single plaintiff’s efforts. The concern is that any individual’s efforts to litigate this case involve reliving considerable trauma. To say that a given sum of money is an ‘adequate incentive’ for survivors to relive the unconscionable acts they experienced as children and continue to live with is willfully blind to the unimaginable suffering defendants allegedly inflicted.”

Besides damages, the class action seeks an injunction that would require Mindgeek to obtain government-issued identification confirming that all performers are older than age 18.

The case is Jane Doe v. Mindgeek USA Inc.

Law360 had coverage of the decision.

Susman Godfrey partner Krysta Kauble Pachman commented in a press release.

“It’s taken tremendous courage and strength for Jane Doe to bring this case, and we are very proud to represent her and the certified class,” she said.

The defendants are represented by Dechert and Quinn Emanuel Urquhart & Sullivan, according to Law360.

Lawyers from Dechert forwarded a statement from Aylo, which was formerly known as Mindgeek.

“Out of respect for the integrity of court proceedings, our policy is not to comment on ongoing litigation. We look forward to the facts being fully and fairly aired in that forum,” the statement said.

Aylo also sent a link to a statement about resolution of a 30-month investigation of entities and affiliates of Aylo Holdings. The investigation by the U.S. attorney for the Eastern District of New York “did not find that Aylo or its affiliates violated any federal criminal laws prohibiting sex trafficking or the sexual exploitation of minors, including child pornography,” the statement said.

The company did, however, enter into a deferred prosecution agreement regarding allegations that Aylo engaged in an unlawful monetary transaction with the production company GirlsDoPorn/GirlsDoToys. Aylo “now understands” that consent forms provided by those companies were obtained by fraud, the statement said.

The statement also said Aylo has “implemented a state-of-the-art compliance program” that includes a review of uploaded content before it is published.

Updated Nov. 22 at 11:30 a.m. to include statements by Aylo, which was formerly known as Mindgeek.

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