Ninth Circuit Upholds Section 230 Protections in FOSTA Case

SAN FRANCISCO — A three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled last week that an adult tube website remains protected by Section 230 of the Communications Decency Act of 1996, affirming a lower court decision in a lawsuit brought on behalf of a Jane Doe plaintiff.

The National Center on Sexual Exploitation (NCOSE), along with senior counsel Dani Pinter and attorneys from several other law firms, filed the lawsuit against subsidiaries and corporations connected to WebGroup Czech Republic, the Czechia-based parent company of the XVideos and XNXX tube sites.

Two members of the three-judge panel voted to uphold a 2025 lower court ruling that found the plaintiff, identified as “Jane Doe,” could not use an exception under FOSTA to overcome Section 230 immunity for the adult tube site, its ownership group and affiliated properties. The third judge concurred in part and dissented in part.

The Ninth Circuit ultimately affirmed the dismissal of all claims brought on Doe’s behalf, finding that WebGroup was protected by Section 230 immunity.

NCOSE filed the federal class action lawsuit in March 2021, with Doe serving as the lead plaintiff. NCOSE and co-counsel from several personal injury law firms, including Kazerouni Law Group, Levin Papantonio Rafferty, the Zarzaur Law Firm, Laffey Bucci & Kent and Conrad O’Brien, brought the case in the U.S. District Court for the Central District of California.

The lawsuit initially alleged that WebGroup knowingly hosted and profited from child sexual abuse material depicting Jane Doe, who was reportedly trafficked and sold for sex while she was a minor. At least four videos depicting Doe’s abuse were allegedly hosted on WebGroup-owned platforms, including XVideos through the “official channel” of an alleged “content partner” account.

During the litigation, Doe’s attorneys argued that WebGroup Czech Republic participated in a sex trafficking venture with the “content partner,” which is considered a third party under standard interpretations of Section 230. Attorneys for the website maintained that Section 230 protected the platform and its owners from liability for the conduct of a third-party user.

Section 230 has played a central role in internet law by providing legal protections to “interactive computer services” that allow third-party users to publish content. The statute generally protects covered platforms from being treated as the publisher or speaker of information supplied by third parties while allowing them to moderate user-generated material.

Doe’s attorneys sought to rely on FOSTA-SESTA to overcome those protections. That argument had previously kept the litigation moving, particularly after the Ninth Circuit reversed an earlier district court decision in 2024 that relied on Section 230 immunity to halt the case against XVideos over the user-uploaded material depicting Doe.

FOSTA-SESTA, enacted during President Donald Trump’s first term and supported by NCOSE, modified Section 230 protections to allow certain civil lawsuits and criminal prosecutions involving online platforms and content connected to prostitution or sex trafficking.

The law has also drawn criticism from sex workers’ rights advocates, who argue that its broad provisions have pushed some consensual commercial sex work offline and increased risks for sex workers. FOSTA-SESTA has faced constitutional challenges as well, although courts have upheld the law.

In the latest development in Doe’s case against WebGroup, the Ninth Circuit determined that her attorneys had not sufficiently established a legal basis for applying the “FOSTA exception” to remove the defendants’ claimed Section 230 immunity.

The three judges wrote in their August 12 decision, “For Doe to invoke the FOSTA exception, WebGroup ‘must knowingly benefit from and knowingly assist, support, or facilitate sex trafficking activities,’ which ‘requires actual knowledge and a causal relationship between affirmative conduct furthering the sex-trafficking venture and receipt of a benefit.'”

“Doe alleges that WebGroup maintains ‘profit-sharing relationships [with] sex traffickers, such as the channel partner who distributed Jane Doe’s abuse videos on the XVideos,'” explains the court’s decision. “But despite using the term ‘sex traffickers,’ Doe does not allege that this channel partner ‘recruit[ed], entice[d], harbor[ed], transport[ed], provide[d], obtain[ed], advertise[d], maintain[ed], patronize[d], or solicit[ed]’ her ‘to engage in a commercial sex act,’ as defined in the statute.”

“Nor does Doe adequately plead WebGroup’s knowledge of her sex trafficking: Doe alleges that she ‘reached out to XVideos and XNXX multiple times over the years, beginning in at least 2017, requesting her abuse videos be removed,'” the judges ruled.

The court therefore found that Doe’s allegations did not sufficiently establish the required legal connection between WebGroup and the sex trafficking venture that victimized her.

“Therefore, Doe fails to adequately allege WebGroup’s knowledge of and participation in sex trafficking activities for the FOSTA exception to apply,” the decision concluded.

Corey Silverstein, a First Amendment attorney whose practice includes adult industry clients, said he welcomed the Ninth Circuit’s decision.

He said, “I am pleased that the Ninth Circuit affirmed the dismissal of every claim against WebGroup. The court correctly applied established Section 230 precedent, recognizing that neutral platform functions do not make a website the creator or developer of unlawful third-party content.”

Silverstein added, “The court also confirmed that FOSTA’s exception requires plausible allegations of actual knowledge and affirmative participation in a specific sex-trafficking venture—not conclusory labels or generalized notice.”

He concluded, “The underlying allegations are unquestionably serious, but liability must still be determined according to the facts pleaded and the requirements Congress enacted.”