BizTech Law Blog

Cincinnati Who-Dey Ruling is Big Deal for Internet Commerce: Website immune from Ex-Bengals Cheerleader’s Defamation Lawsuit

The gossip website, thedirty.com, is immune from liability for online posts about an ex-Bengals Cheerleader’s sexual promiscuity and acquiring a sexually transmitted disease. In a closely followed decision from a case that has generated considerable media coverage because of its potential to chill online speech and hold internet websites such as Facebook, Twitter and newspaper sites liable, which allow third party users to post content, was reversed. The U.S. Court of Appeals for the Sixth Circuit recently overturned a jury verdict of $338,000 against gossip website thedirty.com and its owner Nik Richie. Sarah Jones v. Dirty World Entertainment Recordings LLC  arose after Sarah Jones, a former Cincinnati Bengals cheerleader and teacher who was subsequently convicted of having sex with a high school student, sued the website after it posted unflattering information about her sexual promiscuity with football team players, she demanded the posts be removed, and the website refused. She filed state law tort claims for defamation and privacy torts and won at trial. The defendants appealed.

The Communications Decency Act (CDA) provides immunity for interactive computer services against liability from content created by third parties. Section 230(c) of the CDA provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(e)(3).

In this case, the defendants sought immunity under the CDA, arguing that The Dirty (which allows users to submit content, most of which is stories, news and gossip about other people) did not create the content at issue, but simply published content created by third parties. The district court denied the defendants’ request for summary judgment, ruling that “a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.”

In a case of first impression, the Sixth Circuit rejected the district court's "encouragement test, and instead followed the lead of other circuits who have considered the issue and adopted the "material contribution test" to determine whether the website was responsible for developing the improper content. This test requires the website to be “responsible for what makes the displayed content allegedly unlawful” in order for it to lose immunity under the CDA.

The Sixth Circuit found that while The Dirty encouraged its followers to post content, and selected the statements at issue for publication, it did not encourage or reward the posting of unlawful or defamatory content. Further, the fact that the website could have made, or did make, minor edits to the posts did not give rise to liability for actually developing the improper content. Finally, the decision to leave the posts online despite Jones' request to take them down did not impact immunity. “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,’” the Sixth Circuit wrote. The case was remanded with instructions to vacate the judgment for Jones and enter judgment for the defendants.

As this case makes clear, the CDA provides important immunity protections for interactive computer services, but it does not shield from liability for copyright infringement and other intellectual property claims. The Digital Millennium Copyright Act (DMCA) does provide immunity to such claims, so long as effective "notice-and-takedown" procedures are established, content is promptly removed when a copyright owner gives notice of infringement, and the publisher has no knowledge that the material in question is infringing.

The big takeaway from this case is that in the Sixth Circuit, like other circuits that have tackled the issue, there is a fine line between re-publishing content from a third party (for which immunity is available), and taking actions with respect to such content - specifically "material contribution" - that can give rise to liability. If you have any questions concerning this case, immunity for content on your website, immunity for user’s posts, or other issues arising under the CDA or DMCA, or about intellectual property issues in general, please give your Foster Swift attorney a call.

Categories: Privacy, Social Media