Jones v. Dirty World Entm't Recordings, (6th Cir.), No. 13-5946, 6/16/14

FACTS (AS REPORTED IN OUR SEPTEMBER 2013 ISSUE):

  • Sarah Jones, a former Cincinnati Bengals cheerleader and ex-high school teacher, brought a defamation suit against the gossip site — Thedirty.com — for allegedly ruining her reputation by publishing false comments in an article that appeared on the website.
  • Thedirty.com is a website that encourages visitors to submit gossip-related posts for possible publication.
  • The article at the heart of this lawsuit entitled, "The Dirty Bengals Cheerleader," included allegations that Jones had sexually transmitted diseases and had slept with almost all of the members of the Bengals football team.
  • A key fact in this case was that the site proprietor, Nik Richie, after publishing this third-party gossip piece, added his own comment: "Why are high school teachers freaks in the sack?"
  • Defendants moved to dismiss the case, arguing that they were entitled to immunity under Section 230 of the Communications Decency Act (the "CDA").

CDA SECTION 230:

  • Section 230(c)(1) of the CDA provides: "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."
  • Essentially, the CDA protects website owners from liability for comments posted by third parties on their sites.
  • The immunity is not applicable if the provider is responsible for the creation or development of the information.

DISTRICT COURT DECISION:

  • The district court denied defendant's claim for immunity, holding that the CDA "was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content."
  • The court added that immunity does not apply where the owners invite "invidious postings" by virtue of the site's name, and then elaborate on such posts with comments of their own, thereby encouraging other visitors to respond in kind.
  • The court conducted a thorough review of decisions throughout the various circuit courts and concluded that although CDA immunity is broad, there are certain circumstances under which the immunity may be lost.
  • Specifically, the court pointed out that "a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a 'creator' or 'developer' of that content and is not entitled to immunity."
  • The jury awarded Jones $338,000 in damages for her claims of defamation.
  • Defendants appealed, maintaining that the lower court erred and that § 230(c)(1) in fact barred Jones' claims.

SIXTH CIRCUIT COURT OF APPEALS:

  • The court of appeals reversed the lower court decision, holding that § 230(c)(1) bars Jones' claims.
  • The court reasoned that under the CDA, Richie and Dirty World were neither creators nor developers of the challenged defamatory content that was published on the website even though commentary was added by the defendants.
  • The court pointed out that the core of § 230 operates to bar "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content."
  • In reversing the lower court's decision, the Sixth Circuit interpreted the statutory term "development" in a narrow fashion, and adopted the Ninth Circuit's "material contribution" test as it relates here to the development of content.
  • Thus, under that test, development refers not only to augmenting the content generally, but to materially contributing to its alleged unlawfulness.
  • Applying that test to this case, the facts revealed that defendants selected the statements for publication, added minor commentary and failed to remove same upon request.
  • The court found that such actions fell within traditional editorial functions of publishers and are, therefore, protected.

TAKE AWAY:

  • The outcome in this case restores a sense of confidence in the applicability of CDA immunity for Internet content providers.
  • Notwithstanding the foregoing, companies and other parties who create and maintain online venues must be careful to adhere to current legal standards, as the law in this area is in a constant state of flux.

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