Judge Julia Gibbons, writing for the Sixth Circuit Court of Appeals, articulated the basis for that Court’s reversal of a closely-watched defamation case involving the liability of a website provider, thedirty.com, for the defamatory comments posted by its users about a former Cincinnatti Bengals cheerleader. You can read the Order here.
The lower Court, a district court in Kentucky, had held that although a website provider is usually not liable under Section 230 of the Communications Decency Act (“CDA”), that service provider becomes responsible if they “develop” the content, or if they “in some way specifically encourage the development of what is offensive about the content.” Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1010-11 (E.D. Ky. 2012). The Plaintiff was awarded $338,000.00 in damages.
It turns out, that judgment was not to be; it was vacated by this Sixth Circuit opinion.
The Sixth Circuit, in its ruling yesterday, adopted the “material contribution test” to determine whether a website operator is “responsible, in whole or in part, for the creation or development of [allegedly tortious] information.” This test is taken from Ninth Circuit case law and is articulated as follows:
[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.
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.
As to the facts of this case, which you can read about here, the Sixth Circuit found that thedirty.com and its owner had not “materially contributed” to the defamation.
Dirty World and Richie did not author the statements at issue; however, they did select the statements for publication. But Richie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7, 2009, simply because those posts were selected for publication. See Batzel, 333 F.3d at 1035 (holding that an editor of an email newsletter who received and published allegedly actionable information, adding a short headnote, was immune under § 230 because an editor’s changes to the length and spelling of third-party content do not contribute to the libelousness of the message).
Nor can they be found to have materially contributed to the defamatory content through the decision not to remove the posts. The CDA expressly bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.’
The Court wraps up its analysis with the following observation. The owner of thedirty.com does not require users to post illegal or actionable content as a “condition of use.” Also, the Court opines, the fact that the site owner may have “ratified” or “approved” the defamatory statements does not mean he “developed” them as contemplated by the newly adopted “material contribution test.”