On Friday, a U.S. District Court denied Visa’s motion to dismiss the claim that it’s responsible for harm caused by non-consensual porn of a minor posted to Pornhub because it processed payments for Pornhub at the time the video was uploaded. The decision keeps Visa in the case after its motion to dismiss, and claims that the court could infer that “Visa intended to help MindGeek monetize child porn.”
In the ongoing lawsuit, Serena Fleites alleges that Pornhub’s parent company, MindGeek, and Visa are responsible for damages endured when Fleites’ then-boyfriend uploaded sexual images of her to Pornhub when she was 13 years old. Visa has been trying to get removed as a defendant in the case.
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“When MindGeek decides to monetize child porn, and Visa decides to continue to allow its payment network to be used for that goal despite knowledge of MindGeek’s monetization of child porn, it is entirely foreseeable that victims of child porn like plaintiff will suffer the harms that plaintiff alleges,” U.S. District Judge Cormac Carney wrote.
But Carney also wrote that Fleites “simply has no basis for claiming Visa directly participated in the sex trafficking ventures that harmed her,” and that she needs to file a more definitive statement for her common law civil conspiracy cause of action against Visa.
Visa told Motherboard in a statement: “Visa condemns sex trafficking, sexual exploitation, and child sexual abuse materials as repugnant to our values and purpose as a company. This pre-trial 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.”
In late 2020, following Kristof’s essay, Visa, Mastercard and Pornhub stopped processing payments for the site, leaving everyone who used it as a source of income in the lurch. Pornhub responded to this decision by purging all unverified uploads from its platform and overhauling its safety and moderation practices.
In the decision, Carney writes that Visa “restored services for MindGeek’s paid premium sites and for advertising on all its sites.” According to Visa, however, the payment processor’s suspension of acceptance privileges for Pornhub and MindGeek’s other user-generated content platforms is still in effect.
In a statement to Motherboard, MindGeek said that any insinuations that MindGeek “does not take the elimination of illegal material seriously” are categorically false.
“At this point in the case, the court has not yet ruled on the veracity of the allegations, and is required to assume all of the plaintiff’s allegations are true and accurate. When the court can actually consider the facts, we are confident the plaintiff’s claims will be dismissed for lack of merit. MindGeek has zero tolerance for the posting of illegal content on its platforms, and has instituted the most comprehensive safeguards in user-generated platform history,” the statement said. “We have banned uploads from anyone who has not submitted government-issued ID that passes third-party verification, eliminated the ability to download free content, integrated several leading technological platform and content moderation tools, instituted digital fingerprinting of all videos found to be in violation of our Non-Consensual Content and CSAM Policies to help protect against removed videos being reposted, expanded our moderation workforce and processes, and partnered with dozens of nonprofit organizations around the world.”
The decision mentions columnist Nicholas Kristof’s 2020 New York Times opinion essay, “The Children of Pornhub”—a piece that uses Fleites’ situation as basis for claims that Pornhub is full of child sexual abuse material, something the platform denies—as a motivator for major payment processors deciding to pull their services from Pornhub. This piece was celebrated by anti-sex work, “anti-trafficking” organizations, including the National Center on Sexual Exploitation and the Christian nonprofit Exodus Cry. The decision also references the work of Exodus Cry’s former Director of Abolition, Laila Mickelwait, who led a campaign to “shut down” Pornhub despite anti-trafficking activists that include sex workers in their organizations saying this would be devastating.
Kristof, who announced on Monday that he’s slinking back to his old job at the New York Times Opinion desk after a failed run for governor of Oregon, is using this decision as a victory lap on his Substack. “I got more death threats after my Pornhub article than after any other article I can remember,” he wrote. For the many sex workers who earned a stable, legal living through Pornhub—whose main income source was pulled from under them after Visa, Mastercard, and Discover stopped services to the site—the reality was increased precarity and more risk of actual exploitation.
The outcome of this trial could have a serious impact on sex workers and their ability to earn income online. Banks and payment processors are already frequently discriminatory against sex workers and platforms that allow sexual content; if Visa is found liable for abuses on Pornhub’s platform, it could cause financial institutions to pull back even more.
The full decision can be read here.
Correction, August 11, 8:50 a.m.: This article has been edited to reflect that Mickelwait is a former staff member at Exodus Cry.
