Richard Raysman is a Partner in our New York office.
Via Section 230, the Communications Decency Act (CDA) provides broad immunity for service providers, hosts and website operators for claims stemming from their publication of information created by third parties. In general, courts have adhered to that expansive view in construing Section 230, even in cases when the operator knowingly published defamatory content. However, one recent case from the Eastern District of Kentucky illustrates there are limits to the extent of the aegis afforded by this immunity.
In Jones v. Dirty World Entm't Recordings, LLC, No. 2:09-cv-00219-WOB (E.D. Ky. Aug. 12, 2013) the plaintiff, a cheerleader for the Cincinnati Bengals, requested that defendant's website "thedirty.com" 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 CDA.
In rejecting defendant's argument based on Section 230 immunity, the court in the instant case first quoted the observation of the Seventh Circuit that the CDA "does not provide a grant of comprehensive immunity from civil liability for content provided by a third party." Thereafter, the court in Jones enumerated three reasons defendant could not claim Section 230 immunity. First, in selecting the domain name "thedirty.com," the defendant was implicitly inviting content of a salacious and potentially defamatory nature. Second, the defendant appeared to welcome offensive content by inciting users to form "the Dirty Army" as a response to any objections to the content on the website. Finally, the defendant posted his own comments alongside the defamatory third-party content that appeared to ratify and adopt the message contained therein. This third factor was critical to the court's holding insofar as the defendant's decision to adopt and ratify the third-party content prevented him from claiming neutrality with respect to the offensiveness of the content. The defendant's adoption and ratification also prevented an attempt to disclaim "responsibility" for the offensiveness of the third-party content.
Though the court noted that in general Section 230 immunity was "broad," it found precedential support for its holding from a number of other circuit courts. For example, it cited the holding of the Ninth Circuit in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc). In that case, the court held that Roommates.com could not claim Section 230 immunity after it posted a questionnaire that required answers which could violate federal and state housing anti-discrimination laws. The site lost the immunity because the inclusion of the questionnaires constituted the "creation or development of information" and thereby classified the site as an "information content provider" within the scope of the CDA. Though the site later avoided liability on the merits based on separate statutory housing claims, the Jones court noted that the CDA holding remained precedential, and could thus be employed in analyzing the immunity arguments of the defendant in Jones.
Ultimately, as even the court in the instant case acknowledges, CDA immunity for hosts, operators and service providers remains robust. Nonetheless, these entities should refrain from any acts that could be construed as ratifying or adopting offensive content if they wish to subsequently claim Section 230 immunity in court.
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