An image of adult film actress Asa Akira is displayed at the Pornhub booth at the 2018 AVN Adult Entertainment Expo at the Hard Rock Hotel & Casino on January 24, 2018 in Las Vegas, Nevada.
A federal judge has ruled Visa can be liable for allegations that Pornhub knowingly features child pornography, saying a lawsuit adequately alleges the company has continued to do business with the website despite “knowledge of its illicit nature.”
The decision from U.S. District Judge Cormac J. Carney in Santa Ana, California, rejects most of a dismissal motion brought by lawyers for MindGeek, which operates PornHub and is being sued by a woman who accuses the companies of profiting of her ex-boyfriend’s distribution of sexually explicit videos of her when she was 13.
“Visa lent to MindGeek a much-needed tool—its payment network—with the alleged knowledge that there was a wealth of monetized child porn on MindGeek’s websites,” Carney wrote, saying the decision ensured “the means to profit from child porn.”
And, the judge continued, “after the opening the door, Visa was there at the end of the line, too” by ensuring MindGeek’s “movement of money.”
“Reminiscent of the ‘Too Big to Fail’ Refrain”
The 33-page ruling allows sex trafficking claims claims to move forward against both Visa and MindGeek while dismissing a racketeering claim but allowing a chance to refile with more evidence. It also dismisses a false advertising claim against Visa but allows a claim under the unfair competition law, and it orders the plaintiff to refile her civil conspiracy claim with “a more definitive statement” that better describes what Visa allegedly did that supports a conspiracy.
Carney is allowing plaintiffs’ lawyers to seek discovery from MindGeek within the court’s United States jurisdiction, as opposed to full discovery that would include defendants in other countries. But he rejected their request to take discovery from Visa, saying his order on the dismissal makes clear that “the remaining claims against Visa are uncertain” and the discovery against MindGeek will help determine the scope of the case. He blamed the plaintiffs in part for the slow pace of the case, saying they “filed an unwieldy action with over 30 co-plaintiffs that necessitated severance” and has continued to engage in needlessly complex litigation tactics.
The judge also splashed cold water on Visa’s argument that, if accepted, the lawsuit’s theory “would upend the financial and payment industries.” Carney called it “reminiscent of the ‘too big to fail’ refrain from the financial industry in the 2008 financial crisis” and said he doesn’t believe his decision is “the drastic tectonic shift that Visa fears.”
“But the Court will make the gist of its holding clear, to assuage any such fear: Visa is being kept in this case because it is alleged to have continued to recognize as a merchant an immense, well known, and highly visible business that it knew used its websites to host and monetize child porn,” the judge wrote. Carney rejected Visa’s argument that it’s being asked to police “the billions of individual transactions it processes each year.”
“It is simply being asked to refrain from offering the tool with which a known alleged criminal entity performs its crimes,” Carney wrote. “That is not a tall order and does not spell out an existential threat to the financial industry.”
Still, the judge said the lawsuit “supports an inference” that Visa controls the boundaries regarding content, because when MindGeek “crosses the line, or at least when MindGeek is very publicly admonished for crossing the line, Visa cracks the whip and MindGeek responds vigorously.”
The judge identified two key issues. One is MindGeek’s removal of 80 percent of its content after Visa suspended its privileges after a New York Times article titled “The Children of Pornhub” in December 2020. The other is the allegation that former MindGeek employees “have reported a general anxiety at the company that Visa might pull the plug.”
Given both, Carney said it doesn’t strike him as “fatally speculative to say that Visa—with knowledge of what was being monetized and authority to withhold the means of monetization—bears direct responsibility (along with MindGeek) for MindGeek’s monetization of child porn, and in turn the monetization of Plaintiff’s videos.”
In an email from Visa’s vice president for corporate communications Andy Gerlt, a Visa spokesperson told Law&Crime the ruling “is disappointing and mischaracterizes Visa’s role and its policies and practices.”
“Visa will not tolerate the use of our network for illegal activity. We continue to believe that Visa is an improper defendant in this case,” according to the statement.
“Dog-Whistle to Persons on the Hunt for Child Porn”
Lead plaintiff’s attorney Michael Bowe, a partner with Brown Rudnick LLP in New York, said in an email that Carney’s decision “means Visa and other credit card companies are finally going to face the civil and perhaps criminal consequences of this unconscionable and illegal activity.”
Bowe said Carney “had to find, and did, that we adequately alleged they violated the federal criminal child pornography statute.” Any prosecutor could take those same facts and put it in an indictment and charge them criminally.
“Any prosecutor could take those same facts and put it in an indictment and charge them criminally,” Bowe said in an email.
Bowe represents Serena Fleites and 33 women identified as Jane Doe and described in the complaint as victims of child sex trafficking from across the United States and around the world, including Thailand, Colombia and the United Kingdom. Fleities, who was publicly identified in the December 2020 New York Times article, fell into a depression-induced heroin addiction after the pornographic videos of her led to harassment at school and online, according to Carney’s ruling.
Bowe sued MindGeek, Visa and related business entities and individuals in June 2021. The complaint alleges intimidation tactics that reached the highest ranks of the company, with Vice President Corey Urman allegedly using fake identities online, including one in which he emailed members of the media insinuating the author of a Washington Times op-ed about child porn on PornHub “was a member of an anti-LGBTQ, anti-women group.”
It also alleges Urman used the same pseudonym, Blake White, to tell Insider “that Pornhub immediately removes illegal content when notified,” and that he commissioned another operative who used the pseudonym EyeDeco to “harass and intimidate activists and victims and release their personal information.”
Issued Friday, the judge’s ruling describes MindGeek’s permitting of users to download and re-upload videos as “ensuring a hopeless whack-a-mole situation for victims.” The said the “most disturbing of all” allegations is that MindGeek “itself would reupload illegal videos that it had been forced to disable using made-up accounts that masked the true identity of the uploader.”
Carney said “it seems that” MindGeek’s contractors used its online formatting process “to dog-whistle to persons on the hunt for child porn.”
“For example, they could tag a video with ‘barely legal teen sex’ so that the video appears on a Google search (or on a search on the porn site itself) for ‘teen sex,'” according to the ruling. “Through this tagging system, child porn was easy to find on MindGeek’s sites for anyone who cared to look.”
“Plaintiff alleges a harrowing example in which a video of a toddler and a video of a prepubescent girl being sexually abused were removed, but their ‘title, tags, views, and url’ were kept ‘live to continue driving traffic to the site,’” Carney continued, adding that “the sexual exploitation of minors is an intractable, complicated social problem involving countless independent bad actors.”
But the judge said Fleities doesn’t seek to pin it all on Visa. Instead, “she seeks to hold Visa accountable for a much narrower problem: MindGeek’s monetization of the sexual exploitation of children.”
“Again, Visa is not being sued on a theory that Visa encourages the production of child porn by allowing MindGeek to monetize it,” according to the ruling. “Visa is being sued instead for knowingly providing the means through which MindGeek monetizes child porn once such content is already produced and posted.”
Carney said Fleites’ emotional trauma “flows directly from MindGeek’s monetization of her videos and the steps that MindGeek took to maximize that monetization.”
“Why, after being alerted by Plaintiff that the video was child porn, would it allow the video to be reuploaded, whereafter advertisements were again featured alongside the reuploaded videos?” the judge’s ruling asks.
Read the judge’s full order, below.
(Image: Photo by Ethan Miller/Getty Images)