Clark Hill Obtains Reversal in Ninth Circuit Against Foreign Pornography Websites

In their second significant victory in less than a month, Clark Hill’s Kevin Kent, Mark Schoeller, and Vanessa Huber convinced a Ninth Circuit panel in California to reverse a district court’s dismissal of claims against 11 European defendants that benefitted from the distribution of videos that depicted the sexual abuse of the plaintiff and other victims of child sex trafficking. 

In a precedential opinion, the Ninth Circuit ruled that the federal district court in Los Angeles incorrectly determined that it lacked specific personal jurisdiction over the two  Czech companies that own and operate two of the largest pornography websites in the world, which rank among the top 10 visited websites in the United States. The Ninth Circuit held that the plaintiff had established a prima facie case that these two defendants directed their pornography websites at the United States and that her claims seek redress for harms arising from forum-related activity due to their targeting of the United States audience. 

The Ninth Circuit reversed the district court’s dismissal for lack of personal jurisdiction against the two lead defendants, vacated the dismissal of the other defendants, and remanded for further proceedings.

“We’re pleased with the Ninth Circuit’s decision and are eager to continue our representation of the plaintiff and other trafficking victims who have been exploited by these websites,” Schoeller said.

In Doe v. WebGroup Czech Republic, A.S. et al., the plaintiff is a California resident who was a victim of sex trafficking at 14 years old. She was forced to participate in the creation of videos of adults raping her. Four of those videos appeared on the Czech-based pornography websites, where one of them was viewed more than 160,000 times. 

The websites are hosted on servers in the Netherlands that are owned by an American parent company. But what the Ninth Circuit found especially notable was the defendants’ use of content delivery networks (“CDNs”) located in the United States. The Ninth Circuit explained the CDNs “temporarily copy content from the Netherlands-based servers” to “servers in the United States,” which defendants did “for the conceded purpose of ensuring that ‘users viewing videos have [an] uninterrupted experience.’” 

“By using U.S.-based CDNs to improve the viewing experience of persons near those CDNs, and by allowing CDN providers to pull content onto the U.S.-based CDNs’ servers to do so,” the Ninth Circuit found that the Czech defendants “differentially targeted U.S. visitors in a way that . . . constitutes express aiming at the U.S. market.”     

In March 2021, the plaintiff filed a putative class action against the defendants and asserted claims of child sex trafficking under the Trafficking Victims Protection Reauthorization Act, violations of federal child pornography laws, and a California state law claim providing for the unauthorized distribution of private sexually explicit images. 

The defendants successfully moved to dismiss the case for lack of personal jurisdiction in early 2022, setting the stage for the Ninth Circuit appeal.

“In today’s interconnected digital world, proving that these websites aimed their content at the United States market through the use of content delivery networks was crucial to our argument,” Schoeller said. “There’s still much more work to do, but we’re eager to make our case to the district court once again.”