Visa and the Victims of Pornhub: New Lawsuit Could Bring Greater Accountability to the Industry

A breakthrough case forcing credit-card company to address explicit content involving minors is shedding light on the volatile world of online pornography.

Due to the court’s decision, Visa suspended MindGeek’s advertising arm TrafficJunky’s Visa card acceptance privileges. (Photo: Dmytro Tyshchenko)

WASHINGTON — Visa’s work with one of the largest distributors of pornography has come under scrutiny due to the alleged monetization of illegal content exploiting minors. 

Advocates for victims of the pornography industry are calling a legal case against Pornhub’s parent company, MindGeek, and Visa a “breakthrough” after a California judge decided that Visa could not be dismissed from the lawsuit over the monetization of a video showing a non-consenting minor. The lawsuit was brought by Serena Fleites, a young woman who, at the age of 13, was pressured by her then-boyfriend into making a sexually explicit video, which was then uploaded to the site without her knowledge or consent and continued to appear on Pornhub through reuploading despite her attempts to get it removed. 

Visa CEO Alfred Kelly responded to the ruling in an Aug. 4 statement saying, “We strongly disagree with this decision and are confident in our position.”  He noted that the decision was “a pre-trial decision before Visa has presented any evidence” and said the company does not allow use of the network for illegal activity, including the distribution of content that depicts nonconsensual sexual behavior and child sexual abuse. “We are vigilant in our efforts to deter this and other illegal activity on our network.”

Due to the court’s decision, Visa suspended MindGeek’s advertising arm TrafficJunky’s Visa card acceptance privileges. 

U.S. district Judge Cormac Carney wrote in his denial of dismissal, “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 Monetary Connection

Dani Pinter, senior legal counsel at the National Center on Sexual Exploitation (NCOSE), told the Register that the judge’s ruling in this case is “really important” because “these large financial institutions and websites have been knowingly, financially benefiting from trafficking, turning a blind eye to it.” 

“A case that actually holds them accountable is where we’re going to see this activity stop,” she said.

A December 2020 New York Times column, “The Children of Pornhub” by Nikolas Kristof, brought to light the stories of minors and rape victims whose videos and images were circulated by Pornhub even after repeated requests for their removal. The column focused on Fleites, who ended up homeless and suicidal after she was bullied  due to the video her then-boyfriend made and circulated on the site. 

Kristof pointed out there were also videos involving child rape, writing, “after a 15-year-old girl went missing in Florida, her mother found her on Pornhub — in 58 sex videos. Sexual assaults on a 14-year-old California girl were posted on Pornhub and were reported to the authorities, not by the company, but by a classmate who saw the videos. In each case, offenders were arrested for the assaults, but Pornhub escaped responsibility for sharing the videos and profiting from them.” 

After the column’s publication, Fleites received legal aid to pursue action against MindGeek and Visa. While Visa suspended payments to Pornhub in 2020, it continued allowing MindGeek’s advertising arm, TrafficJunky, to accept Visa payments. Visa’s suspending of merchant privileges in 2020 resulted in Pornhub removing 80% of its content, a connection the judge took note of in the case. 

“It does not strike the Court 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,” Judge Carney wrote in the decision to let the case proceed.

 

Trailblazing Lawsuits

For years, companies like MindGeek have invoked Section 230 of the Communications Decency Act of 1996 to shield themselves from any liability for a third-party’s content, even when the content involves illegal activity.

Section 230 states that “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.” 

Pinter explained that while this rule was meant to protect websites making “good-faith efforts to moderate content,” it has been “interpreted overly broadly beyond what Congress anticipated to amount to almost total immunity.” 

Even with the Trafficking Victims Protection Act, which provided avenues to prosecute traffickers, she said courts, law enforcement agencies and victims’ attorneys seemed uncertain whether litigation was “going to be allowed to proceed when we have Section 230 saying that websites can’t be held civilly liable for what third parties do.”

In 2018, Congress passed the Stop Enabling Sex Traffickers Act, which sought to clarify that Section 230 “does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking.” 

Pinter said that while the language in that law has still led to some confusion, “a case like this is a breakthrough” because it demonstrates that “both MindGeek knew it was going on and so did Visa, so they can’t escape responsibility.”

Despite the attention that this lawsuit and media coverage has given the alleged illegal activity happening within the pornography industry, Pinter said websites like Pornhub haven’t improved policies. 

Laila Mickelwait, an anti-porn activist and founder of Traffickinghub, noted apparent instances of abuse still on Pornhub in March, writing in Newsweek that “the site does not reliably verify the age and unambiguous consent of every individual in every video.” 

With the porn industry’s failure to police itself, victims and their advocates are resorting to lawsuits that aim to force regulation.

Pinter flagged another lawsuit that was recently allowed to proceed in Alabama against MindGeek in which NCOSE is representing two women who allege that MindGeek profited off of videos of their rape as minors. One woman was drugged and raped at the age of 16, and the other was a 14-year-old victim of sex trafficking. The judge in that case dismissed MindGeek’s attempt to claim immunity from liability under Section 230, citing the fact that child pornography is illegal child sexual abuse. 

“We’re very hopeful about the good case law that’s being made and this trail that’s being blazed on behalf of survivors, not only against these entities, but against any entities that have knowingly or should have known that they were benefiting from sex trafficking,” Pinter said. “We hope that also starts informing behavior so that other corporations, other websites will change their behavior and not be facilitating this type of exploitation.” 

 

A Dangerous Addiction

Jim O’Day, executive director of Integrity Restored, a Catholic group that aims to help those affected by pornography, also took the judge’s decision to allow the Visa case to go forward as a positive movement. 

He said in the course of his work he hears heartbreaking stories similar to that of Fleites, in which young girls and boys will share sexually explicit images and videos with one person, only to have it shared to a wider group without their consent. 

“Their lives are damaged significantly,” O’Day explained. He says he hopes that people will start to “realize how widespread this actually is, how dangerous it actually is.” 

“As Catholic parents, we have to get comfortable with the fact that this is a different age our kids are growing up in, and we have to start having conversations with them early and often about what they’re going to see online [or] be asked to do online,” he emphasized. 

In working with those struggling with porn, he stressed that “it’s not just a moral failing, but there’s an actual addiction; and these companies know how to push our buttons to keep us going back for more.” 

“Pornography is a really dangerous substance, as dangerous as any drug you can imagine, as dangerous as alcohol, as dangerous as smoking cigarettes, because our brains start to rewire,” O’Day said. “Pornography changes the way our brain processes something good and beautiful which God created, which is human sexuality. And it changes the way we approach everything: our marriages, our intimate relationships, our friendships, our work relationships.” 

“Pornography is a really dangerous substance, as dangerous as any drug you can imagine, as dangerous as alcohol, as dangerous as smoking cigarettes, because our brains start to rewire,” O’Day said. “Pornography changes the way our brain processes something good and beautiful which God created, which is human sexuality. And it changes the way we approach everything: our marriages, our intimate relationships, our friendships, our work relationships.”  

He said, often, people don’t think they’re harming others by viewing porn but, “you’re being a party to that abuse by consuming it, because the more we consume it, the more the algorithms on these websites say ‘promote this video.’” In one disturbing example of MindGeek’s algorithm-driven marketing from the Fleites case, the judge noted that “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.’”

O’Day said fighting against the pornography industry “is a David-versus-Goliath battle.”  

“These companies are huge and profitable,” he said, but he’s hopeful that this lawsuit will bring more awareness of the “ubiquitous and diabolical” nature of the industry.  

 

A Hopeful Approach 

David Sao, creative and marketing director at The Culture Project, is also hopeful that this case “opens people’s eyes to see pornography is actually hurting people” and that porn leads to “us seeing each other not as what we should be, but as something to be used.” The Culture Project is a group of young-adult missionaries who speak to young people in seventh grade through college and beyond about the Church’s vision of human sexuality. 

The missionaries with the group “tell people to find accountability partners and talk about these things and make it vocal,” he said, because porn use is hugely prevalent, and there are excellent resources to help those with addictions, like Covenant Eyes, an accountability app, and Fight the New Drug, a secular group with statistics about its many harms. He said porn is “always one of the No. 1 things that comes up,” including with kids in seventh and eighth grade who are struggling with it.

“It’s one of those things none of us leave unscathed from,” Sao said. “We want the rest of the world to understand this is actually poisonous to society.

“It’s not just a religious thing; it’s a societal human-rights thing, a human-dignity thing.” 

 

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