Section 230 Applies to Surreptitiously Recorded Video–Does 1-9 v. Pornhub and xHamster

This case involves surreptitiously created NCP videos from a college locker room. (Note: this is not a new issue for Section 230–the Doe v. GTE 7th Circuit decision dealt with similar facts in 2003). Murphy allegedly set up the cameras. Unidentified individuals uploaded the videos to various adult content sites, including Pornhub (Mindgeek) and xHamster (Hammy). Both sites removed the videos upon notice (as I think would be soon required by the Take It Down Act). However, images from the videos propagated to 4Chan and beyond.

This ruling deals with the summary judgment motion from Pornhub, xHamster, and some of their service providers. “It is undisputed that the Videos originated from a third party and that neither MindGeek nor Hammy was involved in the initial creation or development of the Videos.” As a result, this is a pretty obvious Section 230 situation, but the plaintiffs (much like the plaintiffs in the Alabama MG Freesites case) pointed to numerous website design features and attributes that the plaintiffs claim disqualify the defendants from Section 230 immunity.

Thumbnail creation

There is no evidence in the record that MindGeek or Hammy suggested or modified the thumbnails associated with the Videos in a way that would have contributed to their unlawful or nonconsensual nature…the creation of thumbnails is a standard publishing function of both MindGeek and Hammy’s website and is content neutral. [My standard objection to the term “neutral” in reference to publishing functions.]…To assert that by publishing the picture, provided to the publisher by a third party, alongside that third party’s article somehow makes it the publisher’s content, rather than the original author’s, is nonsensical…

It does not sway the Court that MindGeek and Hammy may create and choose “better” images as thumbnails than those selected by the original uploader to promote the content on its website. Again, this conduct falls squarely within the editorial function as publisher. Moreover, the undisputed evidence reflects that MindGeek and Hammy required thumbnails to be created for all the content of their website, which further supports the Court’s conclusion that the creation of the thumbnails from the Videos was purely a neutral, editorial function.

The court distinguishes Doe v. Freesites because that ruling involved CSAM and this case does not. CSAM is always illegal, so any thumbnail from the video also depicted the illegal CSAM. This was not a convincing distinction. Section 230 applies to civil claims over CSAM, so the CSAM/non-CSAM distinction can’t support the court’s conclusion. The court would have done better to expressly reject the Freesites ruling.

Changing Tags and Categories

MindGeek and Hammy’s use of tags and categories in these circumstances comes nowhere near the material contribution to unlawful content required to transform their status to that of liable information content providers. First, merely allowing a third party to create or select certain illicit tags and categories is insufficient to bring MindGeek and Hammy outside the protection of Section 230. As provided above, material contribution means being responsible for what made the displayed content unlawful. Providing “neutral tools” to aid in the display of and search for content does not amount to “development” or “creation” of new content. [again, apologies for the neutral tools descriptor]

the undisputed evidence Plaintiffs produced shows that the categories selected by MindGeek—“amateur,” “lesbian,” and “fetish”—were not indicative of illegal or nonconsensual content in the Videos…Even if MindGeek and Hammy selected all the categories and tags, facts that are largely disputed by the Parties, the Court still finds this would be insufficient under these circumstances as providing or changing certain tags or categories alone did not materially contribute to what made these Videos illegal in the first place

holding a website is not entitled to Section 230 immunity because it selected and edited content for display by changing the tags or categories to more popular tags, thereby increasing its viewership and implicitly encouraging the posting of similar content, would effectively short circuit the broad immunity created under the rule and chill speech on the internet in exactly the way that Congress intended to avoid by passing Section 230. Here, MindGeek and Hammy applied the same, content-neutral publishing functions that it did to all other videos uploaded to its website, and Plaintiffs have presented nothing more than a scintilla of evidence, if any evidence at all, that MindGeek or Hammy did so in a way that contributed to the content displayed in the Videos. Plaintiffs have fallen far short of demonstrating that MindGeek or Hammy have materially contributed to their illegality.

It doesn’t change the analysis that the defendants had separate pages for “voyeuristic” content:

the illegal nature of the Videos here was that they were recorded without the consent of Plaintiffs and that, to show that Defendants materially contributed to the content, there must be evidence that Defendants materially contributed to the recording of these Videos without Plaintiffs’ consent. There is no evidence that anyone recorded these Videos because he was enticed or solicited by the Moving Defendants to do so, nor is there evidence that the Uploaders coordinated with the person who secretly recorded Plaintiffs in anyway and thus that he was indirectly solicited and enticed by Defendants to record these Videos. Likewise, there is also no evidence that the availability of tags or categories such as “voyeur,” “hidden camera,” or “locker room” encouraged anyone to record these Videos.

Content Uploading “Playbook”

The playbook was available only to “content partner” program members, which does not include the uploaders at issue in this case. Plus, content moderation rules don’t take the service out of Section 230:

Many websites provide guidance on posting, but a website’s active role in curating and editing content by providing guidance does not necessarily take it outside of the broad Section 230 immunity unless the assistance in the development of this content is what makes the content unlawful in the first place. Neutral assistance such as the Playbook by MindGeek and guidelines by Hammy was equally available on the website and there is no evidence that it specifically targeted bad actors, much less that it contributed to the unlawful nature of their uploaded content. Moreover, there is no evidence specifically as to the Videos at issue in this action that any of the Uploaders utilized the Playbook or guidelines.

Displaying Ads. “MindGeek and Hammy’s advertisement placement did not change the content of the Videos, nor did it contribute to what made the Videos illegal in the first place.”

But the Algorithms…

Plaintiffs have not provided evidence to support their assertion that MindGeek’s algorithms are “non-neutral” and further, even if they had, they do not explain or provide any evidence as to how the supposedly non-neutral algorithms materially contributed to the illegality of the Videos.

Non-neutral algorithms are an oxymoron.

Also, MP v. Meta rejected the “but the algorithms” argument.

Language Translation. “Plaintiffs cite no authority, and the Court can find no caselaw where a court has considered whether translation of a video amounts to material contribution to the illegality of its content.”

Summary of Section 230 Prima Facie Case

Plaintiffs contend MindGeek and Hammy are liable because they decided to publish the Videos on their websites. The decision to allow third-party content, including decisions in editing and preparing such content for publication on the website, is the quintessential function of a “publisher” under Section 230. Section 230 prohibits Plaintiffs from holding MindGeek or Hammy—as the mere platforms for the Videos uploaded by third parties—liable for the content of those Videos.

FOSTA

there is no evidence that anyone, including Murphy, ever recruited, enticed, harbored, transported, provided, obtained, advertised, maintained, patronized, or solicited Plaintiffs or any other person….While Murphy may well have obtained the footage fraudulently, this does not amount to sex trafficking as anticipated by § 1591.

Also,

there are no facts which establish, or even create a question of fact as to whether, MindGeek or Hammy took part in the common undertaking or enterprise which violated § 1591 of the TVPRA….[the] record demonstrates that there was no direct or indirect association or relationship between MindGeek or Hammy and Plaintiffs’ alleged “trafficker,” the person who recorded them, such that Plaintiff can assert a beneficiary liability claim against MindGeek under the TVPRA

Civil Conspiracy

The court says Section 230 doesn’t apply to xHamster’s relationship with its third-party vendors (?). However, the civil conspiracy claim still fails on its prima facie elements.

Court’s Conclusion

the Court is compelled to note the insidious nature of the harm occasioned upon the Plaintiffs in this case. Their trust was allegedly betrayed by an employee of a college where they were engaged in intercollegiate athletics, and that betrayal has resulted in a chain of events such that an incident more than a decade old still haunts them today. This is true because once uploaded to the internet, these Videos may reappear from time to time on some platform or another for the foreseeable future. While the Court has faithfully applied the currently applicable law to the best of its ability herein, it seems apparent from the events and evidence in this case that the business of publishing and curating third-party content by specialized websites is far different today than at the time of the passage of Section 230. It may very well be time to revisit the proper duties and responsibilities of such companies in today’s world. However, that is a job for Congress, not this Court.

I note that Congress already passed the Take It Down Act, which is not mentioned once in the opinion. Perhaps Congress has already done the job envisioned by this court? Mindgeek/Aylo’s proposed settlement with the FTC/Utah has significant relevance to these concerns as well.

As the court notes, this case involves another tragic set of facts. Section 230 cases usually do. But I think this ruling is a helpful contraposition to the Alabama Doe v. MG Freesites case, because this ruling rejects many of the arguments that shouldn’t have worked in that case. This court got the law right, the Alabama court got it wrong, and other courts should find this opinion more instructive than the Alabama opinion.

Case Citation: Does 1-9 v. Murphy, 2025 WL 2533961 (D.S.C. Sept. 3, 2025). Hammy’s summary judgment motion. Some rulings on the motions to dismiss (1, 2). CourtListener page.

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