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When does a website operator “develop” defamatory content created by third parties that appears on its website, such that it becomes liable in tort for the offensive content? This question was recently addressed by the Sixth Circuit in Jones v. Dirty World Entm’t Recordings.
On June 16, 2014, the Sixth Circuit Court of Appeals, in a case of first impression in that circuit, held that a gossip website operator was not an “information content provider” under the Communications Decency Act with respect to defamatory postings on the website, despite the fact that the operator selected the posts for publication and offered inflammatory comments under the offensive posts. Accordingly, the court determined that the website operator was entitled to tort immunity under the CDA and vacated the jury’s $338,000 verdict.
While a website operator is always responsible for the defamatory content of its own speech, Section 230 of the Communications Decency Act provides “safe harbor” immunity to a website host for third-party speech under most circumstances. However, the operator will lose immunity if it assists to create or “develop” the offensive content. The Jones decision hinged on what it means to “develop” content under the §230 of the CDA.
In Jones, the plaintiff, a Cincinnati Bengals cheerleader and high school teacher, sued the “Dirty World” gossip website and its owner for defamation and libel as a result of offensive comments posted anonymously by third parties, including comments which suggested Jones had slept with the entire Bengals football team and that she had contracted sexually transmitted diseases. Under each post, the website operator, “Nik Richie,” posted his own related comments, such as, “Why are all high school teachers freaks in the sack?”
Prior to trial, the lower court had denied the defendants’ motions seeking dismissal of the claims under the CDA, ruling that the defendants were not entitled to §230 immunity since the site “developed” the illegal content by encouraging the offensive comments, acting as the editor of the site and selecting a small percentage of submissions to be posted, and by publishing his own comments on the subjects under discussion.
In overturning the lower court, the Sixth Circuit declined to implement the “encouragement” or “adoption” of content tests suggested by the lower court, instead of adopting a “material contribution” test that had been previously articulated by the Ninth Circuit in Fair Hou. Council of San Fernando Valley v. Roomates.com LLC. Under the “material contribution” test, a website loses the CDA immunity if it is responsible for what makes the displayed content illegal, but not by merely augmenting or encouraging the content, or taking action that is necessary to the display of the allegedly illegal content. The court opined that the “adoption” or “ratification” test would undermine the intent and purpose of the immunity available under the CDA, which was intended to ensure an “uninhibited, robust, and wide-open “internet.”
Courts have taken varying views on what it means to “develop” illegal content, and this case might be headed to the United States Supreme Court for final resolution of the issue. In the meantime, while the CDA provides broad immunity to website operators for defamatory content created by third parties, given the remaining uncertainty on this issue, website operators who allow third-party commentary should be careful to avoid any acts that could be deemed “creating,” “materially contributing” to, or even “ratifying” offensive third party content on its site.