Earlier this year a federal district court in Kentucky rejected the efforts of TheDirty.com to invoke Section 230 of the Communications Decency Act (CDA) to dismiss a defamation lawsuit filed against it by a former Cincinnati Bengals cheerleader. The decision is significant because it is an unusual failure of a website populated almost entirely by user-generated and user-generated content to be able to rely on the protections of Section 230 of (CDA).
TheDirty.com is a gossip website, described this way by Eric Robinson on the Citizen Media Law Blog: “In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site’s proprietor.”
Section 230 of the CDA states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In plain English, Section 230 has been understood – and applied – to mean that most prominent websites cannot be held liable for the defamatory actions of their users, usually regardless of the complacency in and encouragement of those actions.
There have been exceptions, most notably 2 cases cited by the District Court in this case in support of its decision: Fair Housing Council of San Fernando Valley v. Roommates.com and Federal Trade Commission v. Accusearch. The Roommates.com case involved an apartment search site which was denied Section 230 protection because of its deemed proactive participation in the potential discriminatory activity through providing structured search criteria which allowed users to search by race. Accusearch involved a website that sold metadata about individuals’ telephone calls, which information could not be legally sold in violation of various federal laws. The information was still out there, however, and various third parties continued to peddle it, and Accusearch’s site facilitated that. The problem, as Eric Goldman described it, was this:
Abika.com [Accusearch’s subsidiary] apparently was structured as a classic retailer in that it advertised the third party reports, processed customer payments, and delivered the subsequent reports to customers as if the reports were its own (Abika.com even stripped out the third party vendor’s identifying information). So the veneer of Abika.com simply being a passive intermediary between customers and vendors may have been overwhelmed by Abika’s active and overwhelming presence in the transaction.
With TheDirty.com, that problem was analogized to the one of an active solicitor of defamatory content, even if the interactive computer service” provider was not itself the originator of the offending content:
This Court holds that, under the principles of Roommates.com and Accusearch, the defendants here, through the activities of defendant Richie, “specifically encourage development of what is offensive about the content” of “the dirty.com” web site.
An appeal of the decision by TheDirty.com to the 6th Circuit Court of Appeals was rejected, although not on substantive grounds but rather procedurally due to “fail[ure] to demonstrate how a substantial public interest will be imperiled by delaying [the] appeal until after the district court enters a final order.” Jones v. Dirty World Entertainment Recordings, Inc., No. 12-5133 (6th Cir. May 9, 2012).
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