Experienced First Amendment lawyers know that websites hosting user-created content are extremely difficult to sue for defamation. This is due to Section 230 of the Communications Decency Act of 1996, codified at 47 U.S.C. § 230 (the “CDA”), which establishes broad immunity against tort claims for Internet websites.
Section 230 of the CDA protects providers or users of an interactive computer service, including most internet service providers, bloggers who host third-party comments, message boards, consumer complaint and rating websites, and social media from a wide range of claims based on the website or ISP’s content. Consequently, websites that host user or third-party content generally cannot be held liable for defamation, false statements, or various other kinds of negligence and gross negligence claims. Websites that author or edit their own content, such as newspaper and magazine websites, do not benefit from these protections, though they still may rely on a range of traditional First Amendment protections. Violations of intellectual property rights and federal criminal law are not protected by the CDA.
The risk of criminal misuse and reputational harm on the Internet has created pressure to limit the Section 230 defense. In 2013, a significant majority of state attorneys general supported legislation that would carve out violations of state criminal law from the protections provided by Section 230 of the CDA; opponents feel that such constraints could stifle freedom of expression on the Internet. One of the most-watched lawsuits concerning Section 230 of the CDA involves Sarah Jones, a former school teacher and Cincinnati Bengals cheerleader, who sued the website “thedirty.com” in federal court in Kentucky after the site ignored her request to remove defamatory postings by third-parties about her alleged promiscuity and sexually-transmitted diseases. The court has refused to invoke Section 230 protections for the website. After a January 2013 trial ended in a deadlock, a July 2013 retrial yielded a verdict in favor of Ms. Jones and damages in excess of $300,000.
Should the interest in protecting individual reputations from being damaged on the Internet outweigh the strong protections of freedom of expression on the web provided by the CDA? TheDirty’s appeal to the Sixth Circuit Court of Appeals will rely heavily on the CDA defense and should add an interesting chapter to Section 230 jurisprudence.