We’ve reported before on Section 230 of the Communications Decency Act (CDA), the 1996 statute that states, “[n]o 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.” Courts have interpreted Section 230 to immunize social media and other websites from liability for publishing content created by their users, provided the site owners are not “responsible in whole or in part, for the creation or development of” the offending content.
Two recent federal cases involving the website TheDirty.com show that, 15 years after the landmark Zeran v. AOL case interpreting Section 230 immunity broadly, courts still grapple with the statute and, arguably, get cases wrong, particularly when faced with unsavory content.
TheDirty.com is an ad-supported website that features gossip, salacious content, news and sports stories. The site, run by owner/editor Hooman Karamian, a/k/a Nik Richie, prompts users to “submit dirt” via a basic text form requesting “what’s happening” and “who, what, when, where, why,” and allows users to upload files. In response, users, referred to on the site as the “Dirty Army,” submit stories and photographs along with gossip about the people pictured. Richie then posts the pictures and information, often accompanied by his own comments. Two such racy posts, one detailing the sex habits of a Cincinnati Bengals cheerleader and the other about the supposed exploits of a “Church Girl,” led their subjects to bring defamation claims in federal court. Third-party users, not TheDirty.com, generated the content. Cases dismissed on Section 230 grounds, right? Not quite.
In Jones v. Dirty World Entertainment Recordings, a case in the U.S. District Court for the Eastern District of Kentucky, plaintiff Sarah Jones, a cheerleader for the Cincinnati Bengals football team and also a high school teacher, sued TheDirty.com based on two user-submitted posts that included her picture and statements regarding her sex partners, as well as allegations that she had sexually transmitted diseases. Richie added a one-line comment— “why are all high school teachers freaks in the sack?”—and published the post. Jones requested that the posts be removed, but TheDirty.com refused. Richie also commented on the site directly addressing Jones, saying her concern about the post was misguided and that she was “d[igging] her own grave” by calling attention to it. Jones sought damages for defamation and invasion of privacy under state tort law, and TheDirty.com moved for judgment as a matter of law on CDA immunity grounds.
The court held that TheDirty.com did not qualify for CDA immunity because it “specifically encouraged the development of what is offensive about the content” (citing the Tenth Circuit’s opinion in Federal Trade Comm’n v. Accusearch). The court found that the TheDirty.com encouraged the development of, and therefore was responsible for, the offensive content based on the site’s name, the fact that the site encouraged the posting of “dirt,” Richie’s personal comments added to users’ posts, and his direct reference to the plaintiff’s request that the post be taken down. The court focused on Richie’s comments, including his statement “I love how the Dirty Army has war mentality. Why go after one ugly cheerleader when you can go after all the brown baggers.”
The Jones court’s analysis diverges from prevailing CDA case law in a few respects. For example, regarding the issue of responding to a subject’s request that an allegedly defamatory post be taken down, the Ninth Circuit has held that deciding what to post and what to remove are “traditional duties of a publisher” for which the CDA provides immunity to website operators. More critically, in adopting the “specifically encouraged the development of what is offensive” standard coined in Accusearch, the court in Jones reasoned that by requesting “dirt,” the site “encourage[d] material which is potentially defamatory or an invasion of the subject’s privacy,” and therefore lost CDA immunity. That reasoning, though, could extend to any website functionality, such as free-form text boxes, that permits users to input potentially defamatory material. To hold that a website operator loses immunity based on the mere potential that users will post defamatory content effectively vitiates CDA immunity and parts ways with cases like the Ninth Circuit’s Roommates.com case, which held that a website’s provision of “neutral tools” cannot constitute development of content for purposes of the exception to CDA immunity. For these and other reasons, one leading Internet law commentator calls the case a “terrible ruling that needs to be fixed on appeal.” TheDirty.com’s appeal to the Sixth Circuit is pending.
In a more recent case, S.C. v. Dirty World, LLC, the U.S. District Court for Western District of Missouri held that Richie and TheDirty.com did qualify for CDA Section 230 immunity on facts similar to those in Jones. The plaintiff in S.C. brought suit based on a user-generated post on TheDirty.com that showed her picture along with a description alleging that she had relations with the user’s boyfriend and attempted to do so with the user’s son. Richie published the post, adding a comment about the plaintiff’s appearance. The court explained that, because a third party authored the allegedly defamatory content, CDA immunity turned on whether TheDirty “developed” the content by having “materially contribute[d] to [its] alleged illegality.” The court held that the defendants did not materially contribute to the post’s alleged illegality because the defendants never instructed or requested the third party to submit the post at issue, “did nothing to specifically induce it,” and did not add to or substantively alter the post before publishing it on the site.
After having noted these facts, and how they differed from the facts in Jones, which the S.C. plaintiff had cited, the court explicitly “distanced itself from certain legal implications set forth in Jones.” The S.C. court pointed out that a “broad” interpretation of CDA immunity is the accepted view. It explained that CDA immunity does not, and should not, turn on the “name of the site in and of itself,” but instead focuses on the content that is actually defamatory or otherwise gives rise to legal liability. The court noted, for example, that the site itself has a variety of content, much of it not defamatory or capable of being defamatory (e.g., sports stories and other news).
Given that some may consider TheDirty.com’s gossip content and mission extreme, cases like S.C. likely provide peace of mind to operators of more conventional social media sites. Still, should Jones survive appeal, it could lead to forum shopping in cases where plaintiffs expect to face CDA immunity defenses, because the “specifically encouraged” standard could, as in Jones, lead to a loss of immunity. We’ll keep you posted on the appeal.