Sixth Circuit Vacates Lower Court Judgment and Awards Website Operator Immunity

by Holland & Knight LLP

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 "" 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 "," 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 "" 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.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.