The Sixth Circuit recently considered whether the Communications Decency Act of 1996 ("CDA") bars state-law defamation claims. Jones v. Dirty World Entm't. Recordings, LLC, et al., Case No. 13-5946 (6th Cir. June 16, 2014). The Court answered in the affirmative, and adopted the "material contribution" test to evaluate the scope of immunity conferred by section 230 of the CDA.
Sarah Jones, the plaintiff-appellee, was the subject of several anonymous posts on a website, www.TheDirty.com, operated by the defendants-appellants, Nik Lamas-Richie and Dirty World, LLC. The website, which the Court characterized as "a user-generated tabloid primarily targeting non-public figures," enables users to post anonymous comments, photos and video that Richie then selects and publishes with his own editorial comments.
In response to the comments posted on the website, Jones filed suit in the United States District Court for the Eastern District of Kentucky. Jones alleged state court claims of defamation, libel per se, false light and intentional infliction of emotional distress. Richie and Dirty World argued that section 230(c)(1) of the CDA barred Jones's claims.
The district court rejected the defendants' arguments throughout the course of the litigation, and denied leave to file an interlocutory appeal to resolve the issue. The case went to trial (twice) and a jury returned a verdict in favor of Jones. Richie and Dirty World appealed, arguing that section 230(c)(1) barred the state-law claims.
The appellate court noted that the case is one of first impression in the Sixth Circuit. Although the Court was presented with the issue in Doe v. SexSearch.com, 551 F.3d 412, 416 (6th Cir. 2008), it expressly reserved the question of the scope of the CDA for "another day." That day has come. The Court found that the judgment in favor of Jones "cannot stand."
"Under the CDA, Richie and Dirty World were neither the creators nor the developers of the challenged defamatory content that was published on the website. Jones's tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones's claims."
Communications Decency Act of 1996 Generally
The CDA (a/k/a Title V of the Telecommunications Act of 1996) affects online communications in two ways. First, it is Congress's attempt to regulate pornographic and indecent material on the Internet.
Second, and relevant to the Dirty World decision, section 230(c)(1) of the CDA provides that:
"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."
In other words, section 230 protects website operators from liability for the words of the third parties who use their online services. As explained by the Court in Dirty World, "Section 230 . . . immunizes providers of interactive computer services against liability arising from content created by third parties."
In addition to the protection afforded to Internet service providers, section 230 of the CDA diverges from the common-law rule that allocates liability to publishers or distributors of tortious material prepared by others. Specifically, section 230(e)(3) provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."
The Sixth Circuit Adopts the "Material Contribution" Test
The Sixth Circuit, like other Circuits, has recognized that the CDA protects Internet service providers for the display of content created by someone else. Seaton v. TripAdvisor LLC, 728 F.3d 592 (6th Cir. 2013) (recognizing that section 230(c)(1) provides immunity). The Court cautions, however, that section 230's grant of immunity is "not without its limits." "[I]f a website operator is in part responsible for the creation or development of content, then it is an information content provider as to that content—and is not immune from claims predicated on it."
The Sixth Circuit took a "Goldilocks" approach to determining the breadth of the immunity provided by section 230 - cautious not to adopt an overly inclusive or overly exclusive test. The Court focused on the statutory term "development" in section 230(f)(3). The district court held that the defendants were not protected by the CDA because they "developed [the relevant] information." (Emphasis in original.) The appellate court disagreed and joined the Fourth and Tenth Circuits by adopting the "material contribution" test.
"A material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful." (Internal citation omitted.)
Applying the material contribution measure of "development" to the facts of the instant case, the Court found that the CDA bars Jones's defamation claims. Specifically, the Court relied on the facts that the defendants did not: (1) author the statements at issue, (2) require users to post illegal or actionable content as a condition of use, or (3) compensate users for the submission of unlawful content.
Further, the Court found that the defendants' decision not to remove the posts does not qualify as material contribution. "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." (Internal quotations and citation omitted.)
Finally, the Court found that Richie's comment on one of the posts, "Why are all high school teachers freaks in the sack," did not materially contribute to the defamatory content. The Court explained that, while the comment was "absurd" and "ludicrous," "it would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later comments on that speech." Of course, it is important to note that, while Richie was undoubtedly the "information content provider" for his own comment, Jones never alleged that Richie's comments were defamatory; nor did the district court find that Richie's comments were themselves tortious.
The Sixth Circuit's decision in Dirty World preserves the freedoms conferred upon online publishers by the CDA. Not only does the Court decline to narrow the scope of section 230 immunity, the Court expressly supports early application of the immunity: "Given the role that the CDA plays in an open and robust internet by preventing the speech-chilling threat of the heckler's veto, we point out that determinations of immunity under the CDA should be resolved at an earlier stage of litigation." Indeed, the Court recommends that defendants handcuffed by early district court decisions declining to grant immunity should seek interlocutory appeal. This is clear guidance from the Sixth Circuit that such requests for interlocutory appeals should be granted.