Getting “dirty” online jeopardizes immunity
A recent federal court decision has sent a warning to website owners who get too involved in the comments readers post to their sites.
A federal district court in Kentucky ruled in August that the owner of the website TheDirty.com cannot claim immunity under the Communications Decency Act (CDA) because he “invite[d] invidious postings” and added his own comments to third-party posts.
TheDirty.com — a gossip website that allows users to post photos, anecdotes, and rumors about everyday people or celebrities — was sued for defamation by former Bengals cheerleader Sarah Jones regarding statements that website users made about her.
The third-party post relevant to this case claimed that Jones, also a high school teacher at the time, had contracted sexually transmitted diseases from her ex-boyfriend and that he had bragged about having sex with her on the football field and in her classroom.
Hooman Karamian, the founder of TheDirty and better known as Nik Richie, then added his own comment to the post: “Why are all high school teachers freaks in the sack? — nik.”
The court said it was irrelevant whether Richie’s comment itself was defamatory but that it “adopted” the defamatory third-party post and that, through other comments, he encouraged further defamatory posts.
“What’s really striking about this case is that the judge clearly ruled that the website here could be liable simply for adding generally distasteful comments on top of other users’ defamatory posts,” said Lee Rowland, staff attorney with the American Civil Liberties Union (ACLU), which is writing a friend-of-the-court brief in support of Richie’s immunity under the CDA in an appeal of this case.
Rowland acknowledged that the comments on the website are “naturally objectionable to most people,” but critical speech does not equal unlawful speech — and that is where the ruling erred, she said.
“[The ruling] is wrong as a matter of law, and it’s dangerous as a matter of policy,” Rowland said.
What is Section 230?
Section 230 of the CDA, enacted in 1996, shields website operators and Internet service providers from liability for most third-party content posted on their sites.
Rowland said the “robust culture of online speech” that exists today is directly attributable to Section 230. If website operators feared being sued for users’ content, they would more heavily censor what is allowed on their sites.
The Electronic Frontier Foundation (EFF) notes on its website that Section 230 gives website operators a sense of security in allowing third-party posts, so that YouTube can allow users to post videos, Amazon and Yelp can let users offer product and service reviews, Craigslist can host users’ classified ads, and Facebook and Twitter can allow uncensored social commentary.
News organizations, likewise, may offer “comments” sections at the ends of stories posted online or allow the community to upload photos of newsworthy events without being held liable for users’ content.
As an example of how Section 230 works in practice, the Seventh Circuit ruled in Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. that Craigslist itself did not violate the Fair Housing Act by displaying discriminatory housing ads because it merely offered a space for people to post their own ads.
Some of the housing ads in question indicated a preference for “no minorities” or “no children,” which is generally prohibited under the Fair Housing Act.
But the court ruled that “[Craigslist] is not the author of the ads and could not be treated as the ‘speaker’ of the posters’ words”; therefore, it could not be held liable.
Likewise, the Fourth Circuit ruled in Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. that the website Consumeraffairs.com could not be held liable for defamation for the roughly 20 negative comments users posted on the website about a car dealership.
A shift in Section 230 protections?
However, the line between innocuous website operators who merely offer a blank canvas and website operators who create content for the site is becoming increasingly blurred by decisions like Jones v. Dirty World Entertainment Recordings, LLC.
Bruce Johnson, a partner with Davis Wright Tremaine — a law firm that plans to file a friend-of-the-court brief on behalf of media organizations in support of TheDirty.com in its appeal — said the Dirty World ruling was a surprise.
“Section 230 case law has been very consistent since the Zeran [v. America Online] case in 1990s,” during which time courts had consistently been finding website operators were not liable for third-party content, Johnson said.
Then, in 2008, the Ninth Circuit issued a surprising opinion in Fair Housing Council of San Fernando Valley v. Roommates.com, stating that a roommate-finding website could be held liable for violating the Fair Housing Act because it required users to answer a questionnaire about their sex, sexual orientation, and whether they had children.
Because the website created the discriminatory questions and choice of answers, and because users were required to answer them to gain access to the site (and roommate search results were then sorted depending on the answers), the court ruled that the website “developed” the discriminatory content and therefore could be held liable for it.
Notably, however, the court in Roommates ruled that the website could not be held responsible for discriminatory preferences indicated by users in the “additional comments” section of the questionnaire. Those comments came “entirely from subscribers and [were] passively displayed by Roommate,” the court wrote.
In the Dirty World case, the federal district court in Kentucky ruled that, by naming the site TheDirty.com and by calling its followers “the Dirty Army,” founder Nik Richie “invited and encouraged” defamatory postings. Furthermore, by adding his own comments to the posts, Richie “ratified and adopted the defamatory third-party post,” the court wrote in its opinion.
“There’s no other case that I know of that’s gone to a jury . . . where a website is accused of nothing more than taking pleasure in the unlawful conduct of others,” Rowland said.
Johnson said the fact that the court found that the name of the TheDirty website contributed to its liability was especially surprising and unique among Section 230 cases.
“It just came out of the blue,” he said.
The primary point to stress in the appeal of this case, Johnson said, “is that reviewing, selecting, and removing content are core editorial functions that Section 230 was designed to protect. . . . And this decision presents problems in that regard.”
Potential impact of the Dirty World ruling
Johnson said it is difficult to pull useful guidance from the Dirty World opinion because it is “imprecise, to put it bluntly.”
He says the ruling “has all sorts of potential ramifications, if it were to survive appeal,” but it is difficult to determine just what those ramifications are or how to comply with the ruling.
He said the ruling could affect virtually anyone with a website who hosts third-party content.
Rowland agreed that the ruling “could have major ramifications of all kinds of speech online, especially critical speech.”
She gave the example of an environmental organization that urges people to come forward with horror stories about a particular company’s environmental damage or waste. Simply by inviting critical commentary, the organization could potentially be held responsible for defamation or other claims regarding the third-party posts, based on the Dirty World ruling.
“I think what we might see [as a reaction to Dirty World, if it is not reversed on appeal] . . . is less interactive message boards,” Rowland said. Website operators will be less likely to participate in the commentary on their sites or interact with users, she added.
Richie has appealed the decision in Jones v. Dirty World Entertainment Recordings, LLC, which is currently pending before the U.S. Court of Appeals for the Sixth Circuit. A date has not yet been set for oral arguments.
While cases such as Roommates and Dirty World are important to keep an eye on, Johnson said it is too soon to declare them a trend.
“Two robins don’t make a spring,” he said. “Hopefully.”