Sixth Circuit Reverses Defamation Judgment Against TheDirty.com

I blogged about this case, Jones v. Dirty World Entertainment, last November when the Eastern District of Kentucky held that a plaintiff who had been defamed by posters on the defendant's website could sue the website's owner. Following this holding, a jury found in favor of plaintiff, and the defendant appealed. Yesterday the Sixth Circuit vacated the judgment and held that the plaintiff's lawsuit was barred as a matter of law. The Sixth Circuit's opinion is available here.

The ACLU described the facts of the case shortly following the lower court's verdict:

TheDirty.com is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

Dirty World argued that it could not be sued since the defamatory content had been posted by third parties on the website. Under Section 230 of the Communications Decency Act (CDA), website owners are typically not liable for defamatory statements posted by third parties. The Eastern District of Kentucky ruled that The Dirty and Richie were not entitled to immunity under section 230.

From the Sixth Circuit's opinion:

Under the CDA, Richie and  Dirty World were neither the creators nor the developers of the challenged defamatory content  that was published on the website. Jones’s tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the  publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones’s claims.

The court admitted that sometimes a website owner may be found liable for content posted on the website if the owner takes its own steps to "develop" the offending content in a manner that materially contributes to that content's illegality. The court emphasized that this exception to 230 immunity was narrow, noting that a website owner's "encouragement" of users to post information that may end up being defamatory was not enough remove section 230 immunity from a website owner. The court also held that Richie's comments on the site did not subject him to liability:

A website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc. To be sure, a website operator’s previous comments on prior postings could encourage subsequent invidious postings, but that loose understanding of responsibility collapses into the encouragement measure of “development,” which we reject.

The court further noted that Richie's statements about the defamatory content were not the ones the plaintiff argued were defamatory, and held that Richie's statements did not materially contribute to the illegality of the original statements.

In reaching its holding, the Sixth Circuit follows a general trend of treating CDA, section 230 as granting very broad immunity for websites. Most notably, the court refused to hold that a website owner's posted reaction and approval of defamatory comments subjected the owner to liability by materially contributing to those comments' illegality. This means that plaintiffs will almost never succeed in a lawsuit against a website containing actionable third-party content, even if the owner of that website posts positive reactions to that content.