Sixth Circuit holds thedirty.com entitled to Section 230 immunity

Plaintiff Jones (a high school teacher and Cincinnati Bengals cheerleader) sued the website thedirty.com and its operator for defamation over a number of third party posts that said mean things about plaintiff. Defendants moved for summary judgment, arguing that the Communications Decency Act — 47 USC § 230(c)(1) — afforded them immunity from liability for the content created by third parties. Articulating a “goofy legal standard,” the district court denied the motion, and the case was tried twice. The first trial ended in a mistrial, and the second time the jury found in favor of plaintiff.

Defendants sought review with the Sixth Circuit Court of Appeals on the issue of whether whether the district court erred in denying defendants’ motion for judgment as a matter of law by holding that the CDA did not bar plaintiff’s state tort claims. On appeal, the court reversed the district court and ordered that judgment as a matter of law be entered in defendants’ favor.

Section 230(c)(1) provides that “[n]o 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.” At its core, § 230 grants immunity to defendant service providers in lawsuits seeking to hold the service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.

But the grant of immunity is not without limits. It applies only to the extent that an interactive computer service provider is not also the information content provider of the content at issue. A defendant is not entitled to protection from claims based on the publication of information if the defendant is responsible, in whole or in part, for the creation or development of the information.

The district court held 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.” Thus, the district court concluded that “[d]efendants, when they re-published the matters in evidence, had the same duties and liabilities for re-publishing libelous material as the author of such materials.”

The appellate court held that the district court’s test for what constitutes “creation” or “development” was too broad. Instead, the court looked to the Ninth Circuit’s decision in Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) and adopted the material contribution test from that opinion:

[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

In the Sixth Circuit’s language, “[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.”

In this case, the defendants did not author the statements at issue. But they did select the statements for publication. The court held that defendants did not materially contribute to the defamatory content of the statements simply because those posts were selected for publication. Moreover, the website did not require users to post illegal or actionable content as a condition of use. The website’s content submission form simply instructed users generally to submit content. The court found the tool to be neutral (both in orientation and design) as to what third parties submit. Accordingly, the website design did not constitute a material contribution to any defamatory speech that was uploaded.

Jones v. Dirty World, No. 13-5946 (6th Cir. June 16, 2014)

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media. Contact him.

Website operators not liable for third party comments

Spreadbury v. Bitterroot Public Library, 2012 WL 734163 (D. Montana, March 6, 2012)

Plaintiff was upset at some local government officials, and ended up getting arrested for allegedly trespassing at the public library. Local newspapers covered the story, including on their websites. Some online commenters said mean things about plaintiff, so plaintiff sued a whole slew of defendants, including the newspapers (as website operators).

The court threw out the claims over the online comments. It held that the Communications Decency Act at 47 U.S.C. 230 immunized the website operators from liability over the third party content.

Defendant argued that the websites were not protected by Section 230 because they were not “providers of interactive computer services” of the same ilk as AOL and Yahoo. The court soundly rejected that argument. It found that the websites provided a “neutral tool” and offered a “simple generic prompt” for subscribers to comment about articles. The website operators did not develop or select the comments, require or encourage readers to make defamatory statements, or edit comments to make them defamatory.

Six interesting technology law issues raised in the Facebook IPO

Patent trolls, open source, do not track, SOPA, PIPA and much, much more: Facebook’s IPO filing has a real zoo of issues.

The securities laws require that companies going public identify risk factors that could adversely affect the company’s stock. Facebook’s S-1 filing, which it sent to the SEC today, identified almost 40 such factors. A number of these risks are examples of technology law issues that almost any internet company would face, particularly companies whose product is the users.

(1) Advertising regulation. In providing detail about the nature of this risk, Facebook mentions “adverse legal developments relating to advertising, including legislative and regulatory developments” and “the impact of new technologies that could block or obscure the display of our ads and other commercial content.” Facebook is likely concerned about the various technological and legal restrictions on online behavioral advertising, whether in the form of mandatory opportunities for users to opt-out of data collection or or the more aggressive “do not track” idea. The value of the advertising is of course tied to its effectiveness, and any technological, regulatory or legislative measures to enhance user privacy is a risk to Facebook’s revenue.

(2) Data security. No one knows exactly how much information Facebook has about its users. Not only does it have all the content uploaded by its 845 million users, it has the information that could be gleaned from the staggering 100 billion friendships among those users. [More stats] A data breach puts Facebook at risk of a PR backlash, regulatory investigations from the FTC, and civil liability to its users for negligence and other causes of action. But Facebook would not be left without remedy, having in its arsenal civil actions under the Computer Fraud and Abuse Act and the Stored Communications Act (among other laws) against the perpetrators. It is also likely the federal government would step in to enforce the criminal provisions of these acts as well.

(3) Changing laws. The section of the S-1 discussing this risk factor provides a laundry list of the various issues that online businesses face. Among them: user privacy, rights of publicity, data protection, intellectual property, electronic contracts, competition, protection of minors, consumer protection, taxation, and online payment services. Facebook is understandably concerned that changes to any of these areas of the law, anywhere in the world, could make doing business more expensive or, even worse, make parts of the service unlawful. Though not mentioned by name here, SOPA, PIPA, and do-not-track legislation are clearly in Facebook’s mind when it notes that “there have been a number of recent legislative proposals in the United States . . . that would impose new obligations in areas such as privacy and liability for copyright infringement by third parties.”

(4) Intellectual property protection. The company begins its discussion of this risk with a few obvious observations, namely, how the company may be adversely affected if it is unable to secure trademark, copyright or patent registration for its various intellectual property assets. Later in the disclosure, though, Facebook says some really interesting things about open source:

As a result of our open source contributions and the use of open source in our products, we may license or be required to license innovations that turn out to be material to our business and may also be exposed to increased litigation risk. If the protection of our proprietary rights is inadequate to prevent unauthorized use or appropriation by third parties, the value of our brand and other intangible assets may be diminished and competitors may be able to more effectively mimic our service and methods of operations.

(5) Patent troll lawsuits. Facebook notes that internet and technology companies “frequently enter into litigation based on allegations of infringement, misappropriation, or other violations of intellectual property or other rights.” But it goes on to give special attention to those “non-practicing entities” (read: patent trolls) “that own patents and other intellectual property rights,” which “often attempt to aggressively assert their rights in order to extract value from technology companies.” Facebook believes that as its profile continues to rise, especially in the glory of its IPO, it will increasingly become the target of patent trolls. For now it does not seem worried: “[W]e do not believe that the final outcome of intellectual property claims that we currently face will have a material adverse effect on our business.” Instead, those endeavors are a suck on resources: “[D]efending patent and other intellectual property claims is costly and can impose a significant burden on management and employees….” And there is also the risk that these lawsuits might turn out badly, and Facebook would have to pay judgments, get licenses, or develop workarounds.

(6) Tort liability for user-generated content. Facebook acknowledges that it faces, and will face, claims relating to information that is published or made available on the site by its users, including claims concerning defamation, intellectual property rights, rights of publicity and privacy, and personal injury torts. Though it does not specifically mention the robust immunity from liability over third party content provided by 47 U.S.C. 230, Facebook indicates a certain confidence in the protections afforded by U.S. law from tort liability. It is the international scene that gives Facebook concern here: “This risk is enhanced in certain jurisdictions outside the United States where our protection from liability for third-party actions may be unclear and where we may be less protected under local laws than we are in the United States.”

You have to hand it to the teams of professionals who have put together Facebook’s IPO filing. I suppose the billions of dollars at stake can serve as a motivation for thoroughness. In any event, the well-articulated discussion of these risks in the S-1 is an interesting read, and can serve to guide the many lesser-valued companies out there.

Video: my appearance on the news talking about isanyoneup.com

Last night I appeared in a piece that aired on the 9 o’clock news here in Chicago, talking about the legal issues surrounding isanyoneup.com. (That site is definitely NSFW and I’m not linking to it because it doesn’t deserve the page rank help.) The site presents some interesting legal questions, like whether and to what extent it is shielded by Section 230 of the Communications Decency Act for the harm that arises from the content it publishes (I don’t think it is shielded completely). The site also engages in some pretty blatant copyright infringement, and does not enjoy safe harbor protection under the Digital Millennium Copyright Act.

Here’s the video:

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