Sixth Circuit Reinforces CDA (Communications Decency Act) Immunity – Reverses Lower Court in Jones v. Dirty World
On June 16th, 2014, the Sixth Circuit reversed the lower court’s holding that the gossip site, TheDirty.com, was responsible for its users’ defamatory posts and could not rely on immunity under CDA Section 230. The appeals court ruled that even though the gossip site selected and edited user-generated posts for posting and added non-defamatory, albeit sophomoric, comments following each post, the site was protected by CDA immunity because it was neither the creator nor the developer of the challenged defamatory posts and did not materially contribute to the defamatory nature of the user postings. See Jones v. Dirty World Entm’t Recordings, LLP, No. 13-5946 (6th Cir. June 16, 2014).
The appeals court adopted the 9th Circuit’s Roommates.com “material contribution test” to determine whether a website operator is a “developer” of content under the CDA (i.e., “development” refers to not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness). Flatly rejecting the lower court’s reasoning that websites lose CDA immunity based upon editing content for display and otherwise “encouraging” unlawful content (in this case, based upon the defendant’s suggestive domain name and selection of content), the Sixth Circuit stated:
[O]ther courts have declined to hold that websites were not entitled to the immunity furnished by the CDA because they selected and edited content for display, thereby encouraging the posting of similar content. […] More importantly, an encouragement test would inflate the meaning of “development” to the point of eclipsing the immunity from publisher-liability that Congress established.
The Sixth Circuit also rejected the lower court’s theory that the website operator “adopted” or “ratified” the defamatory content by adding his own pithy commentary after user posts and therefore lost CDA immunity, ruling that a website operator cannot be responsible for what makes another party’s statement actionable by “commenting on that statement post hoc.”
While we have long considered the lower court ruling an outlier, the Sixth Circuit confirmed this. The opinion did not break new ground, but it did reaffirm the basic concepts of broad CDA immunity that protect online service providers for claims related to user-generated content. The appeals court expounded on the broad immunity the CDA offers for website operators – even those who peddle in salacious content – that exercise traditional publisher functions and also stressed the “limited circumstances under which exercises of those functions are not protected.”