Challenging the criminal liability of online services providers for sex trafficking – A comparison of the American and French approaches

Author: Lannier, Salomé & Michala Meiselles, Michala

Abstract: This paper looks at the criminal liability of online services providers (‘OSPs’) for content linked to sex trafficking hosted on their websites. To this end, this paper considers the French prosecution of Vivastreet against the backdrop of two US prosecutions, Craigslist and Backpage. Although not charged with sex trafficking offences, these cases raise questions about the applicability of sex trafficking and pimping offences to OSPs, as well as the specific liability frameworks applicable to them. The apparent difficulties in reaching convictions led to American amendments of the legislation, in particular, the Fight Online Sex Trafficking Act. The French regime was also being considered for reform. This study permits a comparison of the different legal attitudes towards the liability of OSPs hosting advertisements for sexual services and an analysis of the relationships that have been developed between states and OSPs to combat cyber human trafficking more broadly and sex trafficking more specifically. In particular, there is some support for the view that OSPs might be too useful to be seen as perpetrators since their support is pivotal in the fight against cyber trafficking. These cases and their consequences are useful to comment on the recent reform the European Union’s Anti-Trafficking Directive, in particular regarding cyber trafficking.

Keywords: human trafficking, sex trafficking, pimping, corporate criminal liability, online services providers, FOSTA