How can a website operator lose the broad immunity for liability associated with user-generated content conferred by Section 230 of the Communications Decency Act (CDA)?
Section 230 has been consistently interpreted by most courts to protect website operators against claims arising out of third-party content, despite some less than honorable conduct by operators. See, for example, our previous post here. Courts have applied Section 230 even when they have found it problematic to do so, such as in Directory Assistants, Inc. v. Supermedia, LLC, 2012 WL 3329615 (E.D. Va. May 30, 2012), in which the court wrote, “The prospect of blanket immunity for those who intentionally redistribute defamatory statements could have widespread and potentially catastrophic consequences for individuals and entities alike. Nevertheless, under the CDA the Court’s hands are tied.”
Thus, it is with great interest that we watch the appeal to the Sixth Circuit, filed on July 15, 2013, of the U.S. District Court for the Eastern District of Kentucky’s unusual decision in Jones v. Dirty World, 840 F.Supp.2d 1008 (E.D. Ky. 2012). In Jones, the court dismissed the defendant website operators’ motion for summary judgment based on Section 230, leading to a jury award this past July of $380,000 in compensatory and punitive damages against the defendants for defamation and invasion of privacy. In the court’s opinion, and in its supplemental memorandum opinion issued after the jury verdict to “explain further” its rationale, Judge William O. Bertelsman drew a line less favorable to website operators with respect to third-party content than other courts have generally adopted.
We will be monitoring the appeal to see whether the District Court’s decision was merely an anomalous example of how “bad facts make bad law” or a warning shot that actually leaves a dent in the armor of Section 230.
CDA Section 230
Section 230 immunizes providers of “interactive computer services,” such as websites to which users can post content, against certain types of liability arising from third-party-created material: “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.” 47 U.S.C. § 230(c)(1). The CDA defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of” the content. 47 U.S.C. § 230(f)(3).
Although Section 230 does not confer immunity with respect to all types of claims (for example, it explicitly excludes intellectual property law and certain criminal laws from its purview), it does immunize website operators against defamation claims arising out of third-party content. Without this immunity, website operators might be vulnerable for defamatory statements made by others on their websites.
Jones v. Dirty World
In Jones, plaintiff Sarah Jones alleged that the operator of gossip website TheDirty.com, Hooman Karamian (alias, “Nik Richie”), and the companies through which he operates it, were liable for defamation and invasion of privacy due to two user-submitted posts published on TheDirty.com.
TheDirty.com invites users to submit, through an online form, posts that describe “what’s happening,” specify the relevant “City,” “College,” and “Category,” and include photos. The submission form does not require that a post be about any particular topic or individual, and the “Category” field allows the user to make a selection from a wide range of options, including “Business,” “News,” and “Spring Break.” Karamian screens the user submissions and selects some for publication, often adding his own jeering quip at the end of a post. Users can also freely post comments on published stories.
The first post at issue in Jones consisted of a photo of Jones, a schoolteacher and cheerleader for the Cincinnati Bengals pro football team at the time, standing next to a Bengals team-member, with a message proclaiming Jones’s supposed promiscuity among the players. The second post contained a picture of Jones in a bikini and a salacious message about her former marriage and allegations that her ex-husband was a serial adulterer that had tested positive for chlamydia and gonorrhea, and that the poster was “sure Sarah also has both.” At the end of the second post, Karamian wrote, “Why are all high school teachers freaks in the sack? – nik.”
In evaluating the defendants’ claim of immunity under Section 230, the court stated in its supplemental memorandum opinion 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 Jones court distinguished certain other cases that found CDA immunity because, the court asserted, the defendant website operators in those cases did not induce anyone to post unlawful content or add their own comments implicitly adopting an offensive posting and encouraging similar posts. In finding that TheDirty.com “specifically encourage[d] development of what is offensive about the content,” Judge Bertelsman focused on the negative connotation of the name, “The Dirty,” and the facts that Karamian hand-selected user-submissions for publication, added his own comments to published posts, and incited users to form a loose organization dubbed “the Dirty Army” and take “a war mentality.” For those reasons, the court held that the operators of the TheDirty.com were “information content providers” of the posts and therefore ineligible for Section 230 immunity.
It is interesting to note that some of the factors identified by the Jones court have, in fact, been present in other cases interpreting the CDA, and, notwithstanding the existence of those factors, in those cases the CDA was still held to immunize the web site operators. We have discussed some of those cases here and here.
After the Jones court issued its original opinion, TheDirty.com successfully asserted Section 230 protection in S.C. v. Dirty World, 2012 WL 3335284 (W.D. Mo. Mar. 12, 2012), a case brought against the operators of TheDirty.com based on a post similar to those at issue in Jones. In S.C., the court found that the operators of TheDirty.com did not “develop” the post at issue, because they did not do anything to induce a post specifically directed at the plaintiff, did not add to or otherwise alter the substance of the post, and did not require users to post actionable material. The court also refused to find that Karamian’s selection of posts disqualified him from Section 230 protection, stating that Section 230 protects such editorial choices and that “merely encouraging defamatory posts is not sufficient to defeat CDA immunity.” Finally, the S.C. court distanced itself from the Jones ruling by stating it “appears to adopt a relatively narrow interpretation of CDA immunity” that conflicts with the broad immunity interpretations in the Eighth Circuit.
Was the Jones decision an outlier that will be reversed on appeal, or will the Sixth Circuit follow the lower court’s lead in reining in the breadth of Section 230 protection? We look forward to the Sixth Circuit’s contribution to this evolving area of law.