Court Denies Section 230 Immunity to TheDirty.com for User Posts, Setting Stage for Battle in Sixth Circuit

by Davis Wright Tremaine LLP
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On Aug. 12, 2013, a federal court in Kentucky held that the website TheDirty.com can be liable for comments posted by third parties, refusing to rule as a matter of law that the site is immune under Section 230 of the Communications Decency Act, 47 U.S.C. § 230, and setting the stage for a battle in the Sixth Circuit Court of Appeals over the scope of the statute’s protections.

In Jones v. Dirty World Entertainment Recordings, LLC, the plaintiff, Sarah Jones, alleged that TheDirty was responsible for the content of user posts accusing her of having sexually transmitted diseases and having “slept with every other Bengals Football player.” The operator of the website, Nik Richie, reviewed prospective posts, selected some for inclusion, added tag lines, and in some instances, posted his own comments. With respect to one of the comments at issue, he wrote “Why are all high school teachers freaks in the sack?” He also posted other statements that Jones alleged encouraged unlawful content, such as “I love how the DIRTY ARMY has war mentality,” referring to visitors to his site as “the DIRTY ARMY.”

TheDirty repeatedly moved to dismiss the claims under Section 230. That law prohibits treating an online provider “as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The statute defines “information content provider,” in turn, as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided.” Id. § 230(f)(3).

The court found that TheDirty.com was “responsible” for its users’ comments about the plaintiff. In denying the defendant’s earlier motion to dismiss, the Jones court had stated that “[t]he immunity afforded by the CDA is not absolute and may be forfeited if the site owner invites the posting of illegal materials or makes actionable postings itself.” In denying defendants’ subsequent motion for judgment as a matter of law, it found the site “specifically encourage[d] development of what is offensive about the content” and thus was not entitled to Section 230 immunity. It based this finding on three facts: (1) “the name of the site in and of itself encourages the posting of ‘dirt,’ that is material which is potentially defamatory or an invasion of the subject’s privacy”; (2) Richie selected a small percentage of submissions to be posted, added tag lines, and reviewed the postings but did not verify their accuracy; and (3) Richie added his own comments to many postings, including those about Jones. The case went to trial, and earlier this summer, a jury awarded Jones $338,000 in damages.

In the court’s most recent opinion, issued to “explain further its reasons for denying defendants’ motion for judgment as a matter of law,” it reiterated its earlier findings and claimed the ruling was in harmony with other circuits’ approaches and Section 230’s text and purpose. It explained that Richie, by naming his website TheDirty, “form[ing] a loose organization [of readers] dubbed ‘the Dirty Army,’” and adding comments that effectively ratified user posts, had encouraged the unlawful content. The opinion also included a startlingly broad statement: “In the view of this Court, the Act’s text indicates that it was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content.” 

This language and the court’s ruling conflict with the broad interpretation of Section 230 by other federal appellate courts. The Sixth Circuit, however, has never interpreted Section 230; it may soon, given Richie’s vow to appeal. Notably, in dicta, the Sixth Circuit has refused to interpret Section 230 “more broadly than any previous Court of Appeals decision has read it, potentially abrogating all state- or common-law causes of action brought against interactive Internet services.” Doe v. SexSearch.com, 551 F.3d 412 (6th Cir. 2008). And, in Jones, it rejected TheDirty’s interlocutory appeal because defendants “failed to demonstrate how a substantial public interest will be imperiled by delaying their appeal until after the district court enters a final order.” 

Two other courts have confronted similar claims against the same website. In S.C. v. Dirty World, LLC and Nik Richie, 2012 WL 3335284 (W.D. Mo. Mar. 12, 2012), a court found TheDirty immune from claims that a user post was defamatory. It distinguished Jones on the grounds that Richie did not make any comments that could be seen as ratifying the post. But it also “distance[d] itself from certain legal implications set forth in Jones. In particular, Jones appears to adopt a relatively narrow interpretation of CDA immunity.” In Hare v. Nik Richie, 2012 WL 3773116 (D. Md. Aug. 29, 2012), a federal court in Maryland denied TheDirty’s motion to dismiss on Section 230 grounds, allowing discovery on whether TheDirty was designed to be “a portal for defamatory material” or whether Richie’s own comments “specifically encourage[] development of what is offensive” about third-party comments, so as to strip the site of Section 230 protection. The Sixth Circuit will now have its own opportunity to define the parameters of the immunity.

DWT is representing a group of amici in connection with the expected appeal of this case.

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