Visa ‘provided the tool used to complete a crime’ in Pornhub child exploitation conspiracy, judge says in scathing ruling 

It’s being described as a landmark decision that could change how financial institutions are held accountable for the services they provide to internet-based companies, especially if those sites are breaking the law. 

In a scathing decision released on July 29, Judge Cormac Carney of the U.S. District Court for the Central District of California ruled that credit card giant Visa can be held accountable for providing financial transaction services to MindGeek, the Montreal-based parent company of Pornhub, one of the world’s largest, and most controversial pornographic websites. 

The last two years have seen the website’s owners face intense scrutiny after hundreds of survivors came forward to share stories of videos of their rape and sexual abuse, often when they were underage, viewed millions of times on the website without their consent. Requests to have the videos removed were met with stonewalling from the company or outright silence. 

The Pointer first reported on this growing problem in June of 2020. Throughout 2021 a Canadian parliamentary committee held multiple hearings attempting to discern whether the company was following Canadian law. Evidence presented during those hearings strongly suggests the company was ignoring Canadian law that requires internet companies to report suspected instances of child pornography on their sites to law enforcement for close to 10 years. 

It remains unclear whether the RCMP has launched a criminal investigation into the company, after some legislators called on the federal police force to do so. The two Pornhub executives who testified during those hearings last February, CEO Feras Antoon and COO David Tassillo, both resigned from the company in June. 

Responding to a motion from Visa’s lawyers to have the company removed from the civil case—which includes MindGeek, it’s many subsidiary companies and numerous executives—the judge stated that evidence provided so far was enough to conclude that Visa’s services helped facilitate MindGeek’s profiting off of child sexual abuse material, and other non-consensual material that was shared across Pornhub and many of its other tube sites, effectively making Visa a part of a criminal conspiracy to profit from these crimes. 

“Visa knew that MindGeek’s websites were teeming with monetized child porn from its own due diligence and discussions and negotiations with MindGeek,” Carney writes. “Visa continued to grant MindGeek the means to financially benefit from its participation in sex trafficking ventures…Visa’s agreement to financially benefit from child porn can be inferred from its decision to continue to recognize MindGeek as a merchant despite allegedly knowing that MindGeek monetized a substantial amount of child porn on its websites.”

“Visa is not alleged to have simply created an incentive to commit a crime, it is alleged to have knowingly provided the tool used to complete a crime,” Carney adds. 

The Plaintiff in the case is Serena Fleites, a woman whose intimate video shared with a boyfriend when she was 13-years-old ended up on Pornhub and its many other websites in 2014. Her story, eerily similar to many other survivors who have come forward, involves repeated attempts to have the video taken down. It was only after posing as her mother, explaining to MindGeek that the video constituted child pornograpy, that the company acknowledged her request. The video was removed weeks later. 

“In this internet age, a week might as well be an eternity because content constantly and instantaneously proliferates and disseminates,” Carney writes in his decision. 

Serena Fleites testified before a Canadian parliamentary committee last year, explaining how her life fell apart following the posting of a video of her to Pornhub.

(ParlVu) 

He’s right. Despite its removal, the video of Fleites was reposted to Pornhub almost immediately after it was finally removed, appearing on multiple MindGeek tube sites. One such reupload had 2.7 million views. 

Over the last two years MindGeek executives and the company have consistently denied any wrongdoing, claiming they have robust checks and balances in place to ensure harmful content is immediately removed. Testimony before the federal Standing Committee on Access to Information, Privacy and Ethics and numerous whistleblowers who have come forward about the company’s operations cast considerable doubt on that claim. 

Lawsuits against MindGeek allege this is the company’s main business model, regardless of the legality of the content, staff at the company are told to upload as many videos as possible in order to create more web pages, and more views—which leads to more profits. A critical piece of that financial infrastructure is Visa. 

“(This 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,” lawyer Michael Bowe stated in a press release. He is a partner in the Manhattan-based law firm Brown-Rudnick, representing Fleites in the lawsuit.

According to Carney’s ruling, Visa has repeatedly attempted to distance itself from blame for what happened to Fleites and the profits that resulted from MindGeek monetizing videos of her shared without her consent. 

“Visa argues the Plaintiff’s injuries ‘depend entirely on the independent actions of parties other than Visa,” Carney writes.

The judge dismissed this argument. He notes that part of the emotional trauma Fleites experienced “flows directly from MindGeek’s monetization of her videos and the steps that MindGeek took to maximize that monetization.”

MindGeek’s goal was incredibly transparent, he writes. 

“If not for its drive to maximize profit, why would MindGeek allow Plaintiff’s first video to be posted despite its title [13-year-old brunette shows off for the camera] clearly indicated Plaintiff was well below 18-years-old? Why would MindGeek stall before removing the video, which Plaintiff alleges had advertisements running alongside it? Why would MindGeek take the video and upload it to its other porn websites? 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? And why did Plaintiff have to fight for years to have her videos removed from MindGeek’s sites?” Carney posits.

“Plaintiff claims that MindGeek did these things for money, and Visa knowingly offered up its payment network so that MindGeek could satisfy that goal.”

 “This company is probably the largest repository of child pornography in North America,” said Manhattan-based lawyer Michael Bowe. “We have some monsters in the U.S., we had a monster named Harvey Weinstein, we had a monster named Epstein – MindGeek is Canada’s monster.” (ParlVu) 

Visa also claimed it was not responsible for MindGeek’s operations, and could not force the company to do business differently, and should therefore not be held responsible for the company’s actions. 

Carney dismissed this claim also noting that “Visa quite literally did force MindGeek to operate differently.”

In December of 2020, Fleites was the subject of a New York Times article titled “The Children of Pornhub” which detailed her story and the claims of many others against Pornhub. 

Following the release of that story, Visa, along with MasterCard and other major providers suspended services to Pornhub. The website made a series of changes after this, which included a new process for uploading videos which allowed only verified users to add content to the website, and deleted close to 10 million videos. Visa restored its services to the site some time later. 

Carney uses this example as a clear signal of the power Visa held over the company.

“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,” he writes. “Yet here is Visa, standing at and controlling the valve, insisting that it cannot be blamed for water spill because someone else is wielding the hose.”

The pre-trial ruling is a significant victory for survivors and for others currently embroiled in civil lawsuits with MindGeek. The next stage of the legal process could prove to be even more explosive as the ongoing involvement of Visa means internal documents between the company and MindGeek, around corporate structure, finances, operations and ownership, could shed light on the company’s allegedly shady dealings. 

“This discovery will pull back the curtain on MindGeek’s shadowy ownership, operations, and financial transactions, as well as reveal whether it has stored in the United States the child pornography uploaded and monetized on its websites,” Brown Rudnick write in a press release. 

On August 4, five days after the release of Carney’s decision, Visa and MasterCard announced they would be suspending card payments for advertising on MindGeek platforms. 

In a statement released the same day, Al Kelly, chairman and CEO of Visa said the company was disappointed in Carney’s decision, stating the company remains “confident in our position”. 

“In our view, our company’s role, policies, and practices have been mischaracterized. The allegations in this lawsuit are repugnant and stand in direct contradiction to Visa’s values and purpose,” Kelly states. “Friday’s news concerned a pre-trial decision before Visa has presented any evidence. We look forward to shining a light onto the lengths Visa goes to ensure the integrity of our people and network.”

He notes that the company's suspension on user-generated content sites like Pornhub, which occurred in December 2020 is still in place, and services to Pornhub were never reinstated. 

“Despite what you may have read in recent days, you cannot use your Visa card on Pornhub,” he states.

However, critics have pointed out that the cards could still be used on TrafficJunky, MindGeek’s advertising arm, which supplies ads to its websites like Pornhub. Kelly says those services will now be suspended as well. 

“It is Visa’s policy to follow the law of every country in which we do business. We do not make moral judgments on legal purchases made by consumers, and we respect the rightful role of lawmakers to make decisions about what is legal and what is not,” Kelly states. “Accordingly, Visa can be used only at MindGeek studio sites that feature adult professional actors in legal adult entertainment.”

Laila Mickelwait launched the TraffickingHub campaign in 2020 in an effort to get Pornhub shut down. She has been working consistently over the past two years to raise awareness about the site which she previously told The Pointer is “infested” with child pornography. Following the decision by Visa and Mastercard to cut off MindGeek, she released a series of tweets stating the fight against the company may be nearing an end. 

“MindGeek’s porn tube sites were just completely demonetized by Visa and Mastercard. This is a huge moment for victims. Let’s celebrate with them and for them,” she posted. “Now it’s time for civil & criminal justice for victims and preventative policies to make sure it never happens again.”

Email: [email protected]

Twitter: @JoeljWittnebel

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