United States: Sixth Circuit Vacates Lower Court Judgment And Awards Website Operator Immunity

Richard Raysman is a Partner in the New York office

In August of 2013, this blog wrote about the case Jones v. Dirty World Entertainment Recordings, LLC, 965 F. Supp. 2d 818 (E.D. Ky. 2013) ("Jones I"). As described then, Jones I dealt with the following set of facts:

[T]he plaintiff (Jones), a cheerleader for the Cincinnati Bengals, requested that defendant's (Richie) website "thedirty.com" remove highly negative posts about her alleged intimate relationships. When the defendant refused, the plaintiff sued for defamation and libel per se, among other claims. In response, the defendant website operator claimed immunity under Section 230 of the [Communications Decency Act (CDA)].

Even while acknowledging that the immunity was considerable, The Jones I court refused to grant Richie Section 230 immunity. Rather, it held that the Richie's choice of a particular domain name "thedirty.com," and the insertion of encouraging comments alongside the third-party material alleged to be defamatory, rendered him unable to seek the safe harbor under the CDA. Specifically, these actions constituted an adoption and ratification of the offensive content.

The Sixth Circuit granted an appeal and this week it issued a decision, Jones v. Dirty World Entertainment Recordings LLC, --- F.3d --- (6th Cir. 2014) ("Jones II"), that vacated and reversed Jones I. Pursuant to the CDA, an "information content provider," which is defined in relevant part as an entity responsible for the "creation or development of information provided through the Internet,"  cannot avail itself of Section 230 immunity. See 47 U.S.C. § 230(f)(3). As a threshold matter then, the Jones II court had to confront how "narrowly or capaciously" to read the statutory term "development," as Jones argued that Richie was an information content provider because he had developed the defamatory content.

The Jones II court adopted the "material contribution" test, which states that "development" as interpreted under the CDA refers "not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness." See Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc). More precisely, a material contribution to the alleged illegality of the content is tantamount to being responsible for what makes the content allegedly unlawful. Additionally, the Jones II court "expressly decline[d]" to adopt the definition of "development" established by the Jones I court. The latter determined that a party could be a developer under the CDA if it either (a) encouraged, ratified, or adopted actionable third-party postings, or (b) elaborate on "invidious postings" with comments of their own.

As applied to the dispute between Jones and Richie, the Jones II court found that Richie did not materially contribute to the illegality of the statements on "thedirty.com." Simply selecting the allegedly defamatory posts for publication (a traditional editor function) did not materially contribute. Unsurprisingly then, the decision to not remove these posts similarly did not. See also Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997) (an unreasonable delay by AOL in removing defamatory messages did not cause AOL to forfeit CDA immunity). The website that Richie operated did not require uses to post illegal or actionable content as a condition of use. Rather, the website's neutral submission form did in no way condition these submissions on the user inclusion of illegal or defamatory remarks. Finally, the post hoc remarks about Jones's alleged promiscuity and sexual predilections were merely persiflage that did not materially contribute to speech that was already defamatory when it had been originally displayed.

Jones I was considered an outlier, and the Jones II court expressly acknowledged as such by unequivocally repudiating the test Jones I utilized to preclude Richie from asserting CDA immunity. Going forward, as their now appears to be a consensus among the circuit courts, websites are unlikely to lose CDA immunity absent actions such as customization designed to condition posting on the submission of illegal conduct, materially altering benign user submissions to thus appear defamatory, or particularized responsibility, such as an illegal purchase and resale of confidential records, for the content viewable to a user.

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