What is it?
In many instances, a survivor of online child sexual exploitation can seek accountability for the online distribution of CSAM in which they are depicted through both criminal and civil actions against the responsible parties. Depending on the facts of the case, civil suits can result in monetary damages awarded to the plaintiff (to offset expenses and costs related to the abuse and to provide funds for recovery services), injunctions to prevent further harm, and other judicial outcomes. In some jurisdictions, including the U.S., survivors are deprived of the opportunity to seek justice against online platforms through civil actions because online platforms are legally shielded from facing civil liability.
NCMEC's Position:
Online platforms that facilitate child sexual exploitation with the requisite level of culpability—including the online distribution of CSAM—should be subject to civil liability for related harms.
Why does it matter?
When a survivor of online child sexual exploitation is able to seek civil remedies from an online platform involved in distributing CSAM in which the survivor is depicted, the impacts are multifaceted. The plaintiff could be awarded monetary compensation from the online platform to cover losses suffered including medical or mental healthcare expenses and lost income from disruptions to the plaintiff’s ability to work, attend school, etc. A court could issue an injunction to compel an online platform to improve its safety measures to prevent recurring harm to the victim or future harm to other victims. Civil liability could serve as an incentive for online platforms to moderate their internal practices to improve child safety on their systems and thereby diminish their risk exposure to future civil lawsuits. Potential civil liability—including financial and reputational costs—can motivate a business to mitigate litigation risks by preventing the harm that would give rise to a lawsuit.
Each of these potential outcomes can support a survivor’s recovery and drive broader changes to help prevent others from being harmed in the same way.
What context is relevant?
Being subject to civil liability does not mean that an online platform is necessarily responsible for harm suffered by a plaintiff. Instead, when an online platform is not immune from civil liability, there is an established legal pathway for a plaintiff to raise allegations, for an online platform to respond, and for a court to adjudicate claims. Civil liability enables both parties to a lawsuit to appear in court, offer evidence, and make legal arguments before the court determines whether an online platform is—or is not—responsible for plaintiff’s harm. When online platforms are shielded from civil liability, a court has no opportunity to determine responsibility, and the courthouse doors are locked to victims.
A plaintiff might allege that an online platform facilitated a particular harm through its services with a particular level of culpability, perhaps by using moderation practices that fail to detect and remove illegal content or conduct, refusing or neglecting to take down illegal content when notified, implementing algorithms that serve harmful third-party content to children, or hosting features that inappropriately connect adults with children.
Because most of the world’s largest online platforms are headquartered in the U.S., American laws are globally relevant to this issue. A provision in U.S. law—Section 230 of the Communications Decency Act, commonly referred to as simply “Section 230”—has shielded online platforms from civil liability for harms committed through their services. In response to questions received during a February 2023 U.S. Senate Judiciary Committee hearing, NCMEC noted that the immunity granted to online platforms under Section 230 has been interpreted to limit the ability of children victimized by the online distribution of CSAM in which they are depicted from seeking recourse against all entities who participated in their harm—including online platforms that facilitated their sexual exploitation online with the requisite level of culpability. This expansive judicial interpretation of the civil immunity provided under Section 230 is inconsistent with the original intent of Congress and outdated in the context of our modern online world. The current judicial application of Section 230 has led to the dismissal of dozens of lawsuits brought by children and their families against online platforms that were aware that CSAM was distributed on their platforms; enabled posting of and refused to remove this content and/or user accounts responsible for distributing the content; and operated a platform that facilitated this illegal activity and abuse against children. As a result, children who have been sexually exploited online are left with no legal recourse and denied their day in court against any online platform, regardless of the platform’s knowledge, culpability, or affirmative participation in the child’s sexual exploitation online.
Changes to Section 230 specifically related to allowing civil liability for sex trafficking violations were enacted in 2018. NCMEC supports proposals for similar revisions regarding civil liability of online platforms for their involvement in CSAM distribution.
What have survivors said about it?
Survivors are broadly supportive of laws and regulations that subject online platforms to civil liability. Some have speculated about how their own experiences might have been different, or even prevented entirely, had online platforms faced civil liability before CSAM in which they were depicted was circulated online. Noting that for-profit companies tend to be motivated by financial incentives, survivors suggest that society should not expect online platforms to voluntarily make moral or virtuous choices absent government compulsion (through legislation or regulation) or the risk of financial repercussions (through civil suits seeking monetary damages).
I often wonder how my life would have been different if Reddit or Twitter would have helped me. Would the predators have been caught? Would I have been spared from even a few years of the harassment and pain that I had to live through? Would another child have been saved from the predators who I was reporting? What will it take to motivate these companies to care about the human lives they are allowing to be destroyed?
- Survivor
Tech companies continue to prioritize profit and the interests of non-victimized users and abusers over the rights and privacy of victims and survivors. Civil liability gives victims some of their rights back and makes tech think twice about some of their poor policy decisions. They won't change simply because it is the right thing to do, therefore we need to hit them in the only way that will force them to change course: financially.
- Survivor
What drives opposing viewpoints?
Advocates for online platforms’ continued immunity from civil liability frequently raise concerns about overly aggressive content moderation potentially leading to increased censorship of online speech. Some assert that existing immunity has supported tech innovation and growth and expanding online platforms’ exposure to civil liability would create significant financial burdens through litigation. Those advocates also argue that these burdens might prove insurmountable for smaller companies, giving the largest corporations an increased competitive advantage.