Part 2: Bedford meets Backpage.com

As I explained a few weeks ago, Bedford v Canada (Attorney General), 2012 ONCA 186 [Bedford] decision asks more questions than it answers. One of those questions is how prostitution can be communicated, specifically how prostitutes (or their pimps) can solicit clients and how clients can express interest in those prostitutes. The provision in the Criminal Code, RSC 1985, c C-46, which prohibits prostitutes, or their pimps, from communicating or attempting to communicate with someone for the purpose of offering sexual services, was upheld by the Court of Appeal of Ontario in April. The same provision puts limits on the consumer of the service too – that is, johns cannot stop or attempt to stop someone to communicate to that person that he is seeking the service of a prostitute. But the provision only applies in the context of a “public place” or “in any place open to public view.” With our world being increasingly connected and increasingly open, the question of what constitutes a “public space” or “place open to public view” becomes all the more pressing.

The Internet as the New Street Corner

In fact, the Internet has greatly facilitated the job of pimps. Services like Backpage.com allow pimps to advertise their girls in a relatively cost-free and, until now, consequence-free way. In any city in which Backpage.com operates, the ‘Personals’ section is littered with advertisements about young, attractive and eager women. Even if there is no direct reference to sex for money, the advertisements generally abound with indirect references – flirty phrases, paired with pictures of women clad only in underwear.

In that sense, services like Backpage.com have replaced the traditional street corner, greatly enhancing access to these prostitutes and their pimps. It is easier to run an advertisement – likely, a series of advertisements as a pimp – than it is to station someone on a street corner for the night. It may therefore come as no surprise that Backpage.com accounts for more than 70 percent of prostitution ads in all of America, according to one research group.

A Safer Alternative?   

Some may consider Backpage.com to be a safer alternative to those street corners. Sure, the women have a higher degree of control: they can dictate some of their terms, such as which services they will provide before even coming in contact with their clients; and they can try to learn more about the men who contact them. If the Bedford decision is applauded for protecting women from harm and granting them a higher degree of dignity, then Backpage.com, and services like it, should be applauded too. This has always been the line used by Backpage and its parent company, Village Voice Media. They argue that they cooperate with police to try to screen out ads for underage girls. If Backpage.com does enjoy a quasi-monopoly on prostitution advertisements, then the website could be, in theory, used as a resource for the police to combat underage prostitution.

Is This the Reality?

But the reality seems much grimmer. Some women, who have been advertised as essentially prostitutes on Backpage.com, have not given their consent. Even more alarming, some of these women are not even of age. The pimps are able to exploit underage women much more discreetly on Backpage.com than on a street corner or brothel. The Internet becomes a safety shield for these johns, who can work from the safety of their homes and have their identity obscured by pseudonyms, firewalls, etc. Thus, many commentators scorn services like Backpage for exacerbating the problem of human trafficking around the world. What is even more apprehensible is that, not only is Backpage.com complicit in advertising prostitution, but they also profit from it financially. Village Voice Media, Backpage.com’s parent company, has earned millions in advertising revenue.

Much Talk But No Action?

In 2010, a teenage girl from Missouri brought a lawsuit against Village Voice Media for allegedly turning a blind eye to prostitution ads on Backpage.com. She alleges that she was prostituted by an adult, Latasha Jewell McFarland, who posted Backpage.com advertisements that featured the victim’s photo and other personal details. She argues that Village Voice Media was aiding and abetting prostitution, as well as exploiting children, by failing to fully investigate the ads.

The issue of underage trafficking in America has united state Attorney Generals and legislators. They have put pressure on Village Voice Media to eliminate the personal escort ads from their website, much like what Craigslist did after state Attorney Generals banded together a few years ago. One reason that Craigslist folded under pressure is that a 24-year old medical student, Philip Markoff, used Craigslist to enlist the service of  escorts and exotic dancers. He bound and gagged them before robbing them; in one case, he murdered her. The ‘Craigslist Killer’ case swept the nation, and shone light on these dark transactions online.

Legal Challenges

Even though the public is generally very sympathetic to the case made by the applicant, M.A., against Village Voice Media, lawyers and scholars have underlined the uphill battle that this woman, and women like her, would face in trying to bring Backpage.com to “justice.” In early 2011, a U.S. Magistrate, Judge Thomas Mummert, dismissed the lawsuit against Village Voice Media, citing Section 230 of the Communications Decency Act, 47 U.S.C. § 230. The provision states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Despite the “horrific victimization” that the applicant endured, companies are protected by the Communications Decency Act from liability for what others post on their websites. A similar case to that against Backdoor was one that involved Craigslist from 2009. In Dart v Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. III. Oct. 20, 2009), the court upheld immunity for Craigslist against a county sheriff’s claims that its “erotic services” section constituted a public nuisance, as it caused or induced prostitution.

The judge rejected the applicant’s argument that, because Backpage.com had structured its business around profiting from these prostitution advertisements, it is not within the reach of the Communications Decency Act. For-profit businesses are not exempt, in other words.

What about Canada?

Given Section 230 of the Communications Decency Act, a case brought against Backdoor is going to be next to impossible to win in the United States. We have some statutory provisions in Canada that replicates this provision in the Communications Decency Act, but only in the context of copyright infringement. In that sense, our Internet service providers and website hosts are not as immune to libelous, defamatory, pornographic, etc. materials posted by third-parties. It remains to be seen, however, how far the courts will go to grant Internet service providers and website hosts immunity for a social problem as serious as human trafficking.

Another issue that the courts will need to confront is the meaning of “public space” within Section 213(1)(c). The Ontario Court of Appeal decision has been appealed to the Supreme Court of Canada, which will have the final say on this controversial matter. If the Supreme Court agrees that the Internet is a free and open platform, then ‘Personals’ section of Backpage.com, as a channel of communication between prostitutes and clients, may be considered an illegal enterprise.

Even if Backpage.com can be brought to court, whether it will actually happen is another question. Since human trafficking is not a hot button topic in Canada right now, and since we have not had such recent horrors as the ‘Craigslist Killer,’ Canadian lawmakers may be slower to react to the dangerous entanglement between the Internet and prostitution.