S
ince its adoption in 1996, the Communications Decency Act (CDA) has immunized administrators and operators of websites from liability for defama-tory statements posted by others on their websites.1 Until recently, evenwebsites like ripoffreport.com and pissedconsumer.com—which some-times go as far as urging visitors to post comments, including those that may be defamatory—have been pro-tected from liability for defamatory user comments. Courts have taken a hands-off approach with website operators, even where the opera-tors failed to confirm the accuracy of defamatory comments posted on their websites and failed to remove such comments even after being noti-fied that they were inaccurate.2
Two recent federal district court rulings may be signaling a change. Decisions by courts in Kentucky and Maryland involving thedirty.com undermine CDA immunity by sug-gesting that immunity does not apply to websites that “encourage” visi-tors to post defamatory comments.3 These decisions have undercut the intent of the CDA by exposing web-site administrators to liability for routine activities for which they have always been immune. This article examines how these courts miscon-strued the CDA in Jones v. Dirty World Entertainment Recordings, LLC and Hare v. Richie. These two decisions also provide a road map for website administrators to navigate the changing legal landscape should more courts adopt their principles.
Communications Decency Act: Section 230 and Liability of Website Operators
The CDA treats website operators differently than publishers and tele-vision and radio station operators, all of which may be held liable under common law for publishing defam-atory material written by others.4 Specifically, § 230 of the CDA immu-nizes website operators from liability for defamatory statements posted by others on their websites.5 Congress included § 230 in the final version of the CDA in response to a New York state court opinion, Stratton Oak-mont, Inc. v. Prodigy Services Co.6 In Stratton, an online messaging board operator was subjected to a publish-er’s liability for defamatory posts on its Web board that the operator failed to remove, based upon the operator’s voluntary removal of other posts by other third parties.7 Stratton was criticized for discouraging website administrators from screening posts because doing so would trigger lia-bility that could be avoided by doing nothing.8
To avoid similar rulings, Congress established a general rule that providers of interactive com-puter services are liable only for speech that is properly attribut-able to them. State-law plaintiffs may hold liable the person who creates or develops unlawful content, but not the interactive computer service provider who merely enables that content to be posted online.9
As a result of the legislation, courts aim as a matter of course “to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects web-sites not only from ultimate liability, but from having to fight costly and protracted legal battles.”10
However, the statutory language seems to have left open to interpreta-tion whether website operators can be liable for inviting others to publish defamatory content on their web-sites. For example, § 230 states that “providers of interactive computer services” (i.e., website operators) may not be treated as “the publisher or speaker of any information pro-vided by another information content provider.”11 An information content provider is “any person or entity that is responsible, in whole or in part, for the creation or development of infor-mation provided through the Internet or any other interactive computer service.”12 Website operators are not immune from liability for their own defamatory posts because they are the information content providers of those posts. But what if the operator encourages visitors to post potentially defamatory statements? Can website operators be held responsible for the creation of their visitors’ defamatory statements if they encourage visitors to post defamatory statements?
In the past, courts have consistently held that they cannot be held respon-sible for such creation.13 For example, in Global Royalties, Ltd. v. Xcentric Ventures, LLC, the U.S. District Court for the District of Arizona held that the operator of ripoffreport.com was immune from liability for defamatory comments posted by its visitors even though “[i]t is obvious that a website called Ripoff Report encourages the publication of defamatory content.”14 But in Jones and Hare, the district courts held that a website operator can be held responsible for defama-tory statements posted on its website by visitors if the operator “encour-ages” visitors to post statements that might be defamatory.15
Jones v. Dirty World Entertainment Recordings, LLC
The Jones case involved thedirty.com,
The “Dirt” on Revocation of Immunity for
Websites That “Encourage” Defamatory Posts
RobERT L. RogERs III
Robert L. Rogers III is an associate with Holland & Knight. Parts of the article are based on Two Federal Cases Hold Website
“Responsible” for Postings on thedirty. com (Spring 2013), available at http://
www.hklaw.com/publications/Two-Federal- Cases-Hold-Website-Responsible-for-Postings-on-thedirtycom-01-29-2013.
defeated the purpose of resolving the question of immunity at the early stages of litigation, before litigation costs escalate.34 The court declined to decide whether Richie and Dirty World can be liable if they only gen-erally encouraged others to post defamatory statements, denying the motion to dismiss in order to allow discovery on exactly how they encour-aged others to post such statements.35 The court then invited Richie and Dirty World to reassert the argument that they cannot be liable for posts of the Dirty Army “after the completion of discovery.”36
Jones and Hare: Erroneous Holdings
Website operators should be alarmed by Jones and Hare. The courts in Jones and Hare have broken new ground by holding that website operators waive § 230 immunity for defamatory state-ments posted by others merely by using controversial website names, generally eliciting controversial posts, and posting their own comments on their websites. The holdings in Jones and Hare contradict the clear intent of § 230 and prior cases that have consid-ered when operators may be liable for encouraging defamatory posts.
Using Controversial Names and Inviting Controversial Posts
At least one other federal court has since disagreed with the assessment of the Jones court. In a case involving thedirty.com, the U.S. District Court for the Western District of Mis-souri weighed in by criticizing Jones and holding that “merely encourag-ing defamatory posts is not sufficient to defeat CDA immunity.”37 And, as noted in Hare,38 courts construing defamation claims against consumer advocacy websites have consistently held that “encourag[ing] the publica-tion of defamatory content” by using a scandalous Web address like ripof-freport.com and inviting visitors to post potentially defamatory state-ments does not render “the website operator responsible, in whole or in part, for the ‘creation or development’ of every post on the site.”39
The courts in Jones and Hare ignored these cases by using an irra-tional construction of “information content provider” and opining that of what is offensive about the site.”25
The district court did not limit its holding to Richie’s posts, and it did not examine whether Richie encour-aged any specific posts by members of the Dirty Army. Instead, it exam-ined all comments posted about Jones collectively and held that Richie “spe-cifically encourage[d] development of what is offensive about the content of ‘thedirty.com’ website” by (1) naming the website thedirty.com; (2) select-ing which comments were posted; (3) posting comments without confirm-ing their accuracy; (4) decidconfirm-ing which posts to remove; and (5) “[m]ost sig-nificantly,” posting Richie’s own comments.26
Hare v. Richie
Seven months after Jones, the U.S. District Court for the District of Maryland similarly suggested in Hare that Richie and Dirty World can be liable for defamatory statements posted by others on thedirty.com if they “encouraged” the development of defamatory content on thedirty. com.27 The plaintiff in Hare filed suit for defamation against Richie and Dirty World for comments posted on thedirty.com suggesting that he stalked women.28 Richie posted responses to many of the defama-tory posts.29 Richie and Dirty World moved to dismiss, based in part on immunity under the CDA.30 After examining the same cases considered in Jones, the court in Hare denied the motion to dismiss in order to allow discovery on whether Richie “specifi-cally encourages development of what is offensive about the content” sub-mitted by third parties to its website.31
To its credit, the court in Hare dis-tinguished Richie’s posts from those of the Dirty Army and recognized that although Richie was clearly not immune for his own posts, he might be immune under the CDA for state-ments posted by the Dirty Army.32 The court also acknowledged the cases involving consumer advocacy websites suggesting that Richie and Dirty World cannot “be stripped of § 230(c)(1) immunity for the third-party” posts as a result of acts that encouraged such posts.33
However, to the court’s discredit, it refused to resolve the conflict between those cases and Jones and thereby a news and gossip website
adminis-tered by Nik Richie (Richie) through Dirty World, LLC (Dirty World).16 Richie posts comments submitted by followers of thedirty.com (whom he calls the “Dirty Army”) without verifying their accuracy.17 Many com-ments concern “dirt” about celebrities or other followers of the website, and Richie occasionally responds with his own comments.18 Richie decides which comments to remove.19
In Jones, a high school teacher and cheerleader for the Cincinnati Bengals filed a defamation action against Richie and Dirty World, seeking relief for comments posted on thedirty.com suggesting that she had “slept with every Bengal football player” and had sexually transmitted diseases.20 Although the defamatory comments were posted by members of the Dirty Army, Richie did post several respon- sive comments, including the following: • “Why are all high school
teach-ers freaks in the sack?—nik.” • “I love how the Dirty Army has
war mentality. Why go after one ugly cheerleader when you can go after all the brown baggers.” • “If you [Jones] know the truth,
then why do you care? With all the media attention this is going to get worse for you. . . . You dug your own grave here, Sarah.”21 Richie and Dirty World moved for judgment as a matter of law based upon immunity under the CDA.22 The U.S. District Court for the East-ern District of Kentucky denied the motion and held “that the Defendants are not entitled to immunity under the CDA.”23 To reach this conclusion, the district court examined two cases construing § 230’s definition of infor-mation content provider and adopted the statement by the U.S. Court of Appeals for the Tenth Circuit in FTC v. Accusearch, Inc., that “a service provider is ‘responsible’ for the devel-opment of offensive content only if it in some way specifically encourages the development of what is offensive about the content.”24 It then held that “by reason of the very name of the site, the manner in which it is man-aged, and the personal comments of defendant Richie, the defendants have specifically encouraged development
Richie—but not particular posts by the Dirty Army—“specifically encouraged” the offensive content of thedirty.com by naming the web-site thedirty.com and inviting visitors to post dirt.40 They construed the relevant “content” in “information content provider” to be the entire website and thereby concluded that Richie was “responsible for the devel-opment” of all content on the website. However, courts applying the CDA should examine each defamatory post and identify, post by post, who is responsible for the creation of the defamatory content of each post.41 Otherwise, it would be difficult not to hold all website operators responsible for every post on their websites.
This error resulted from the Jones and Hare courts’ mistaken reliance upon Fair Housing Counsel of San Fernando Valley v. Roommates.com, LLC and Accusearch.42 Fair Hous-ing involved unique circumstances in which users were limited to posting only content that had been solic-ited by the website operator.43 In Fair Housing, the U.S. Court of Appeals for the Ninth Circuit held that the operator of a roommate-matching website violated fair housing laws by forcing subscribers to answer ques-tions about their gender and sexual orientation preferences for room-mates.44 The Ninth Circuit held that the CDA did not immunize the opera-tor from liability for answers posted by visitors because the operator wrote the discriminatory questions and answers and was therefore “responsible for developing” them.45 Accusearch involved an enforcement action seeking to punish a website for unlawfully selling confidential phone records, not an action seeking to hold a website operator liable for the con-tent of statements posted on a website by third parties.46 In Accusearch, “the
offending content was the disclosed confidential information itself.”47
The flaw in the courts’ reasoning in Jones and Hare is highlighted by the absurdity of the inference in Jones that Richie specifically encouraged others to post defamatory statements about Jones. There was nothing spe-cific about Richie’s encouragement because he did not solicit specific comments from specific authors. At least one federal court has recognized an exception to CDA immunity for operators who “encourage, instruct, and participate in” specific defama-tory posts by, for example, asking a specific author to post photos sup-porting the author’s defamatory statements.48 But generally encour-aging all visitors to post potentially defamatory comments has con-sistently been held to not render a website operator responsible for visi-tors’ posts under § 230 of the CDA.49 A court should not hold a website administrator liable for specifically encouraging a defamatory post when the administrator never invited the specific post, never spoke directly with the author of the post, and never added to or altered the specific post.
The court in Jones also pointed to Richie’s editorial control over thedirty. com as proof of how Richie and Dirty World encouraged defamatory posts and therefore became responsible for their creation.50 However, a website administrator’s decisions concerning which comments to post and remove are precisely the kinds of editorial functions that are protected under the CDA.51 Using Richie’s exercise of these editorial functions as a basis for imposing liability for posts that he refused to remove violates the very essence of § 230.
Posting an Administrator’s Responsive Comments
The court in Jones stressed that the “most significant” way that Richie became “responsible for creating” the Dirty Army’s defamatory statements was by posting his own responsive comments.52 However, the court mis-construed the legal significance of Richie’s posts. Holding Richie respon-sible for the creation of defamatory statements posted by others simply because he posted responsive com-ments extends the exception to CDA
immunity far beyond what Congress intended and exposes many innocent administrators to liability.53
Website administrators routinely comment on posts by visitors to their sites. Such posts rarely discourage fur-ther discussion. Virtually any comment posted by a website administrator in response to a defamatory post, other than one expressly discouraging fur-ther discussion, can be construed as encouraging further discussion, regardless of whether or not that dis-cussion is defamatory. It defies the intent of § 230 to hold website admin-istrators liable for others’ defamatory posts based solely upon their own non-defamatory posts. It is also illogical to charge an administrator with respon-sibility for creating someone else’s defamatory post based upon the oper-ator’s response to that post because the defamatory post comes before and not after the operator’s post. It is impos-sible to encourage someone to say something that he has already said.
To the extent that it makes any sense to hold website operators respon-sible for defamatory posts by others based upon their own comments, such responsibility should be imposed only when the operator’s comments agree with or ratify a defamatory comment. No such limitations were imposed in Jones and Hare.
Jones and Hare: Lessons Learned
Although at least one court has dis-credited the principles applied in Jones and Hare,54 other courts may endorse and follow them, so website administrators should heed the fol-lowing lessons from Jones and Hare and other similar court decisions:
1. A key way to remain immune from liability for defamatory statements posted by others is to refrain from posting your own responsive comments. Website administrators can “significantly” reduce their risk of liability for others’ defamatory posts by choosing not to post comments on their websites.55 By post-ing nothpost-ing, they can avoid the accusation of having stoked the defamatory fire started by other posters.
2. If you do post comments, avoid agreeing with or encouraging
Website administrators
should heed the lessons
from
Jones and Hare
and other similar
decisions.
com (Oct. 17, 2012), available at http://
news.cincinnati.com/article/20121017/ NEWS0107/310170080/Judge-orders-Sarah-Jones-ex-husband-keep-away. It should come as no surprise that these revelations affected the jury’s delibera-tions during the initial trial of Jones’s claims against thedirty.com, which ended in a mistrial after the jury deadlocked on Jones’s defamation claim. See Judge Declares Mistrial After Jury Deadlocks in Ex-Bengal Cheerleader Sarah Jones’ Law-suit (Jan. 23, 2013), available at http:// www.wcpo.com/dpp/news/local_news/ day-2-ex-bengals-cheerleader-sarah-jones-lawsuit-trial-with-thedirtycom (“Jurors were deadlocked 9–1 in favor of Jones regarding whether she was defamed. The one juror who disagreed reportedly said the fact that Jones lied about having sex with York [the high school student] was a factor in the dissenting vote.”).
24. Jones, 840 F. Supp. 2d at 1010–11 (citing FTC v. Accusearch, Inc., 570 F.3d 1187, 1199 (10th Cir. 2009); Fair Housing Council of San Fernando Valley v. Room-mates.com, LLC, 521 F.3d 1157, 1161–62 (9th Cir. 2008)). 25. Id. at 1012. 26. Id. 27. Hare v. Richie, 2012 WL 3773116, at *19 (D. Md. Aug. 29, 2012). 28. Id. at *2–5. 29. Id. 30. Id. at *7. 31. Id. at *19. 32. Id. at *18–19. 33. Id. 34. Id. at *19. 35. Id. 36. Id. 37. S.C. v. Dirty World, LLC, 2012 WL 3335284, at *4 (W.D. Mo. Mar. 12, 2012). 38. Hare, 2012 WL 3773116, at *18. 39. See Global Royalties, Ltd. v. Xcen-tric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008); Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 475–76 (E.D.N.Y. 2011); Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 2008 WL 450095, at *10–11 (M.D. Fla. Feb. 15, 2008) (holding that under § 230 of the CDA, merely encouraging third parties to submit negative product reviews on a website called ripoffreport.com does not render the operator of the website responsible for such reviews).
40. Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1010–11 (E.D. Ky. Jan. 10, 2012); Hare, 2012 WL 3773116, at *18–19.
further discussion on defama-tory posts. At least one court has held that a website administrator cannot be held liable for encour-aging another’s defamatory post if its responsive comment “could [not] be seen as ratifying . . . or encouraging further develop-ment” of the defamatory post.56 For example, an administra-tor is far more likely to be held “responsible for the creation” of a subscriber’s defamatory post about a high school teacher’s alleged sexual promiscuity by responding, as did Richie, that all teachers are “freaks in the sack” rather than responding that the teacher is unattractive because the former response may imply agreement with the state-ment that the specific teacher is promiscuous.57
3. Do not write titles for statements posted by others on your web-site. At least one court has held a website administrator respon-sible for creating defamatory statements posted by others, despite the CDA, because the administrator wrote defamatory titles for those posts.58
4. Be careful what you name your website. Selecting a website name that suggests you want visitors to post dirt, gossip, or other potentially defamatory material will invite judicial scru-tiny, particularly if you take no steps to screen inaccurate dirt. 5. If you are asked to remove a
defamatory post, remove it. At least one court has suggested that a website administrator should not be held responsible for a subscriber’s defamatory post that it removed from the website upon request because “this suggests that the [admin-istrator] neither adopted nor encouraged further development of the post.”59
Endnotes
1. 47 U.S.C. §§ 230(c)(1), 230(e)(3) (1996).
2. See Johnson v. Arden, 614 F.3d 785, 790–92 (8th Cir. 2010); Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 475– 76 (E.D.N.Y. 2011); Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d
929, 933 (D. Ariz. 2008).
3. Jones v. Dirty World Entm’t Record-ings, LLC, 840 F. Supp. 2d 1008 (E.D. Ky. Jan 10, 2012); Hare v. Richie, 2012 WL 3773116 (D. Md. Aug. 29, 2012).
4. See Batsel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003).
5. 47 U.S.C. §§ 230(c)(1), (e)(3). This immunity is not unlimited. Section 230 does not limit liability under state or fed-eral intellectual property laws or impair the enforcement of federal criminal stat-utes relating to obscenity and the sexual exploitation of children. 47 U.S.C. §§ 230(e)(1)–(2). It also does not limit the application of the Electronic Communica-tions Privacy Act or similar state laws. 47 U.S.C. § 230(e)(4). 6. 1995 WL 323710, at *5 (N.Y. Sup. Ct. May 24, 1995). 7. FTC v. Accusearch, Inc., 570 F.3d 1187, 1995 (10th Cir. 2009) (citations omitted). 8. Id.
9. Nemet Chevrolet v. Consumeraf-fairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (internal citation omitted).
10. Id. at 255.
11. 47 U.S.C. § 230(c)(1) (1996). 12. 47 U.S.C. § 230(f)(3).
13. See, e.g.,Johnson v. Arden, 614 F.3d 785, 790–92 (8th Cir. 2010); Global Royal-ties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008); Ascen-tive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 475–76 (E.D.N.Y. 2011).
14. Global, 544 F. Supp. 2d at 933. 15. Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1012 (E.D. Ky. Jan. 10, 2012); Hare v. Richie, 2012 WL 3773116, at *19 (D. Md. Aug. 29, 2012).
16. Jones, 840 F. Supp. 2d at 1009;
Hare, 2012 WL 3773116, at *1.
17. See Jones, 840 F. Supp. 2d at 1012. 18. See id. at 1009; Hare, 2012 WL 3773116, at *1.
19. Jones, 840 F. Supp. 2d at 1012. 20. Id. at 1009–10.
21. Id. at 1012. 22. Id. at 1009.
23. Id. at 1013. Several months after the district court issued its opinion on her defamation action, Sarah Jones pled guilty to criminal charges of hav-ing used her position of authority to coerce a student into having sex and admitted to having sex with a student at the high school where she taught. See
Jim Hannah, Judge Orders Sarah Jones’ Ex-Husband to Keep Away, cincinnati.
41. See, e.g., Ascentive, 842 F. Supp. 2d at 474–75; Whitney, 2008 WL 450095, at *11; Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 591 F.3d 666, 67172 (7th Cir. 2008).
42. Jones, 840 F. Supp. 2d at 1010–11. 43. Fair Housing Council of San Fer-nando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008). 44. Id. at 1161–62. 45. Id. at 1166. 46. FTC v. Accusearch, Inc., 570 F.3d 1187, 1190, 1199 (10th Cir. 2009). 47. Id. at 1199.
48. See, e.g.,MCW, Inc. v. Badbusi-nessbureau.com, LLC, 2004 WL 833595, at *10 (N.D. Tex. Apr. 19, 2004).
49. Ascentive, LLC v. Opinion Corp.,
842 F. Supp. 2d 450, 475–76 (E.D.N.Y. 2011); Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008); S.C. v. Dirty World, LLC, 2012 WL 3335284, at *4 (W.D. Mo. Mar. 12, 2012); Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 2008 WL 450095, at *10–11 (M.D. Fla. Feb. 15, 2008).
50. Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1012 (E.D. Ky. Jan. 10, 2012).
51. See, e.g.,Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Green v. Am. Online (AOL), 318 F.3d 465, 471–73 (3d Cir. 2003); Whitney, 2008 WL 450095, at *9 n.24 (acknowledging that “[d]efendants should not be treated as information content providers of the
defamatory posts about WIN based on the content monitors having the discretion to delete or redact reports that contain ‘blatantly illegal, inappropriate, or offen-sive materials’”).
52. 840 F. Supp. 2d at 1012.
53. See Nemet Chevrolet v. Consumer-affairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009).
54. Dirty World, 2012 WL 3335284, at *4–5.
55. See Jones, 840 F. Supp. 2d at 1012. 56. Dirty World, 2012 WL 3335284, at *5. 57. Id. 58. MCW, Inc. v. Badbusinessbureau. com, LLC, 2004 WL 833595, at *9 (N.D. Tex. Apr. 19, 2004). 59. Dirty World, 2012 WL 3335284, at *5.
