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Dirty Business: Why state law defamation claims fail against ISPs

by Douglas Brent, Attorney at Stoll Keenon Ogden PLLC
Katy Meyer, Summer Associate at Stoll Keenon Ogden PLLC and University of Kentucky College of Law student

On June 16, the Sixth Circuit Court of Appeals addressed for the first time an important free speech protection in the Communications Decency Act of 1996. Under Section 230 of the CDA, information service providers (in this case, a website) cannot be held liable under state law for statements made by 3rd parties though their service. Congress instituted this immunity to maintain a free flow of information on the internet, protect free speech, and encourage self-regulation among providers rather than government regulation. While § 230 provides important protection to ISPs, websites can still be held accountable if they participate in the creation or development of defamatory information. The Sixth Circuit’s recent ruling addresses when a website and/or ISP has created or developed the information, and thus when they will be held liable for unlawful content.

TheDirty.com is a website devoted to local news and gossip, primarily consisting of 3rd-party submissions. The editor screens posts for nudity, obscenity, threats of violence, profanity, or racial slurs, but does not create, change, or modify the content, and does not fact-check. If the editor comments or contributes to the content, he marks his additions by bolding them and adding a signature.

Jones v. Dirty World Entm’t Recordings, 2014 U.S. App. LEXIS 11106 (Sixth Cir. June 16, 2014), concerned a Cincinnati Bengals cheerleader and local high school teacher who was the subject of a variety of posts relating to intimate details about her private life on TheDirty.com. After asking to have the posts removed, she sued the website and its operator for defamation and other common law torts.

The website and its editor argued that under § 230 of the CDA they could not be held liable for the potentially defamatory or libelous statements of 3rd-parties on their website because they did not create or develop the unlawful content. The district court originally held that by posting the content and commenting on it, the website had “developed” the content and implicitly ratified it. The Sixth Circuit disagreed and instituted the material contribution standard, which has been instituted in several other circuits. This ruling gives ISPs immunity from state law defamation claims so long as they do not materially contribute to the information that they publish.

The material contribution standard protects traditional editorial functions, such as the decision to publish, withdraw, postpone, or alter content, because these actions do not add or contribute to the unlawfulness of the content. Providers can only be held liable for libelous or defamatory statements if they contribute in some way to make things worse for the target of the critical content. This would include altering content to make it unlawful or more unlawful, incentivizing such conduct, or requiring someone to break the law to participate in their web service. Websites that provide a forum for user posts and do not require user to violate the law in their posting are immune from suit.

The Court’s decision vacated a $338,000 jury verdict, which included $300,000 in punitive damages. The Sixth Circuit noted Congress’ vision for “a free and open internet” is served by the immunity provision of § 230(c)(1), which the Court said “subverts common-law publisher-liability,” implying that we all have to filter some dirt while searching for truth.