We've been covering the bizarre case
of Sarah Jones v. TheDirty.com for a while now. Jones, a high school teacher and Cincinnati Bengals cheerleader, was (perhaps reasonably) offended by some posts and photos by users of TheDirty which made potentially defamatory claims about her. The whole case got off on the wrong foot when Jones' lawyers accidentally sued a totally different site
, TheDirt.com, rather than TheDirty.com, which is how the case first drew our attention (also partially worrying us that they'd eventually accidentally sue Techdirt as well). Given the situation, though, it seemed pretty clear that Section 230 protected the site from liability (though not the original people who wrote the allegedly defamatory content). Except, Jones never bothered to go after the users, insisting that TheDirty.com and its founder Nik Richie were liable for the comments. Stunningly, the district court judge rejected
the Section 230 defense, arguing that, in part, because the site had "dirt" in its name, Section 230 safe harbors didn't apply
. As you might imagine, that hit home for us.
The ruling went a bit deeper than that, obviously, claiming that by republishing and adding commentary to the original submitted comments, TheDirty.com gave up its Section 230 protections, because it was "encouraging" defamation. Because of this, a jury awarded Jones $338k from TheDirty.com and Richie
. However, thankfully, this morning the Sixth Circuit appeals court has overturned the district court
and issued a nice, clean Section 230 ruling that highlights the importance of Section 230 safe harbors in protecting free speech online, and demonstrating how and why the district court got it so wrong.
The ruling goes through a nice history of the case and Section 230, and then notes the district court's wholly made up "encouragement" test to remove Section 230 safe harbors doesn't make much sense, noting that it was based on misreading existing case law elsewhere. It notes that an "encouragement" test would go against numerous other court rulings that found Section 230 safe harbors valid and would obliterate the purpose of Section 230:
More importantly, an encouragement test would inflate the meaning of “development” to
the point of eclipsing the immunity from publisher-liability that Congress established. Many
websites not only allow but also actively invite and encourage users to post particular types of
content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of
consumer products and services, allegations of price gouging, complaints of fraud on consumers,
reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much
of this content is commented upon by the website operators who make the forum available.
Indeed, much of it is “adopted” by website operators, gathered into reports, and republished
online. Under an encouragement test of development, these websites would lose the immunity
under the CDA and be subject to hecklers’ suits aimed at the publisher. Moreover, under the
district court’s rule, courts would then have to decide what constitutes “encouragement” in order
to determine immunity under the CDA—a concept that is certainly more difficult to define and
apply than the Ninth Circuit’s material contribution test
As the appeals court notes, this clearly goes against what Congress intended:
envisioned an uninhibited, robust, and wide-open internet,... but the
muddiness of an encouragement rule would cloud that vision. Accordingly, other courts have
declined to hold that websites were not entitled to the immunity furnished by the CDA because
they selected and edited content for display, thereby encouraging the posting of similar content.
... (“Such weak encouragement cannot strip a website of its
section 230 immunity, lest that immunity be rendered meaningless as a practical matter.”); ... We do the same.
This is important for a variety of reasons. Just this morning, I saw a debate break out on Twitter about whether or not someone is liable for retweeting a defamatory tweet. In other parts of the world the answer, ridiculously, is yes. Thankfully, this ruling highlights why that's not
the case here in the US. Merely selecting and editing content for display does not remove your safe harbors. In this case, the court goes even further in noting that "ratifying or adopting" others' statements in no way makes you suddenly liable for those statements:
An adoption or ratification
theory, however, is not only inconsistent with the material contribution standard of
“development” but also abuses the concept of responsibility. A website operator cannot be
responsible for what makes another party’s statement actionable by commenting on that
statement post hoc. To be sure, a website operator’s previous comments on prior postings could
encourage subsequent invidious postings, but that loose understanding of responsibility collapses
into the encouragement measure of “development,” which we reject.... As other courts have recognized, the adoption
theory of “development” would undermine the CDA for the same reasons as an encouragement
And thus, Dirty World is protected here:
Dirty World and Richie did not author the statements at issue; however, they did select
the statements for publication. But Richie and Dirty World cannot be found to have materially
contributed to the defamatory content of the statements posted on October 27 and December 7,
2009, simply because those posts were selected for publication.... Nor can they be found to have materially contributed to the defamatory content
through the decision not to remove the posts.... The CDA expressly bars “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.”
Also, thankfully for us at Techdirt in particular, the court points out that Dirty World's name
doesn't remove liability just because it has "dirt" in it:
does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content
will be published.
The court also notes that while Richie's additional comment "why are all high school teachers freaks in the sack" may be "absurd," it does not "materially contribute to the defamatory content." Nor, by the way, did Jones claim that Richie's own comments were ever defamatory -- the lawsuit was entirely focused on the content written by others. Instead, Jones' lawyer tried to claim that Richie's non-defamatory comments contributed to the defamation, and thus took away his safe harbor protections. But the court points out how absurd this is:
Richie’s remark was
made after each of the defamatory postings had already been displayed. It would break the
concepts of responsibility and material contribution to hold Richie responsible for the
defamatory content of speech because he later commented on that speech. Although ludicrous,
Richie’s remarks did not materially contribute to the defamatory content of the posts appearing
on the website. More importantly, the CDA bars claims lodged against website operators for
their editorial functions, such as the posting of comments concerning third-party posts, so long as
those comments are not themselves actionable.
And, the court also offers a pretty direct dig at Jones and her lawyers for targeting the wrong party (not the original lawsuit which totally
targeted the wrong site, but for going after the site instead of the original commenters):
We note that the broad immunity furnished by the CDA does not necessarily leave
persons who are the objects of anonymously posted, online, defamatory content without a
remedy. In this case, Jones conceded that she did not attempt to recover from the person(s)
whose comments Richie elected to publish. She conceded that she did not attempt to subpoena
Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty
World and Richie. But, under the CDA, Jones cannot seek her recovery from the online
publisher where that publisher did not materially contribute to the tortious content.
All in all, this is a good win for Section 230 safe harbors for online publishers, and a good win for free speech. This case should have gone this way at the district court level -- and it only went sideways because of a confused judge who basically misread or ignored pretty much all precedent on the issue.