September 14, 2014 Top Story

Website Not Liable for Anonymous Postings

Decision sets high bar for operator liability

Onika K. Williams

In a case of first impression, the U.S. Court of Appeals for the Sixth Circuit decided that a website and its operators could not face defamation claims for content posted by third parties. Sarah Jones v. Dirty World Entertainment Recordings LLC, et al. The Sixth Circuit adopted the “material contribution” test to determine whether a website operator can be held liable for allegedly tortious content under 47 U.S.C. § 230(c)(1) of the Communications Decency Act (CDA) of 1996.

Defamation Claims Make It to Trial—Twice

Sarah Jones, a former teacher and professional cheerleader, was the subject of several derogatory postings by anonymous users on the website, The Sixth Circuit describes as “a user-generated tabloid primarily targeting nonpublic figures” operated by Nik Lamas-Richie and Dirty World, LLC.

In response, Jones brought suit in the U.S. District Court for the Eastern District of Kentucky alleging state tort claims of defamation, libel per se, false light, and intentional infliction of emotional distress. The website operators filed a motion for summary judgment, asserting that section 230(c)(1) of the CDA barred such state-law tort claims. Section 230(c)(1) states that “[n]o 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.”

Finding that Richie and Dirty World “developed” the information underlying Jones’s defamation claim, the district court rejected the immunity argument, holding that the web operators were not entitled to immunity under the CDA. The court also denied a motion for leave to file an interlocutory appeal. The case was submitted to a jury twice. The first trial ended in a mistrial upon a joint motion. The second trial resulted in a $338,000 jury verdict in favor of Jones. On appeal, Richie and Dirty World raised again asserted immunity under section 230(c)(1) of the CDA.

The Sixth Circuit vacated the judgment in favor of Jones and reversed the district court’s denial of immunity. The appeals court concluded that the district court erred by (1) overbroadly reading the term “development” in section 230(f)(3) of CDA and (2) using the “encouragement” test, instead of the “material contribution” test, to determine immunity.

Immunity and the Material Contribution Test

The Sixth Circuit decided when a website is not an “information content provider” under section 230(f)(3) with respect to information it publishes, such that section 230(c)(1) bars state-law tort claims based upon that information. Under section 230(f)(3), an "information content provider" is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."

The court found the case “turns on how narrowly or capaciously the statutory term ‘development’ in § 230(f)(3) is read.” An overly inclusive interpretation would hold the website operator responsible for “development” for merely displaying or allowing access to content created by a third party. An overly exclusive interpretation of “development” would exclude all publishing, editorial, and screening functions of a website operator. The Sixth Circuit determined that “development” under section 230(f)(3) “means something more involved than merely displaying or allowing access to content created by a third party; otherwise § 230(c)(1) would be meaningless.” The court concluded that the district court interpreted “development” too broadly, “elid[ing] the crucial distinction between, on the one hand, taking actions (traditional to publishers) that are necessary to the display of unwelcome and actionable content and, on the other hand, responsibility for what makes the displayed content illegal or actionable.”

“The Sixth Circuit is absolutely right,” advises Dori Ann Hanswirth, New York, NY, cochair of the ABA Section of Litigation’s Commercial and Business Litigation Committee. The appellate court refused to apply the district court’s encouragement test, concluding that the test “inflate[s] the meaning of ‘development’ to the point of eclipsing the immunity from publisher-liability that Congress established.” The Sixth Circuit explained that many websites invite and encourage users to post content. Some of the content will be unwelcome to others, such as unfavorable reviews of products or services, and website operators comment on much of that content. Under the encouragement test, these websites would lose immunity under the CDA. Additionally, courts would have to decide what constitutes “encouragement” to determine whether immunity applies.

The district court’s interpretation of the CDA “had the danger of swallowing [section 230] immunity,” explains Hanswirth. “The trial court decision was an outlier,” observes Stephen J. Siegel, Chicago, IL, cochair of the Section’s Commercial and Business Litigation Committee. “The [Sixth Circuit] substantially clarified the standard for ‘development’ under the CDA by application to the facts. This case likely will be a key point of reference going forward and not just for its vibrant facts,” predicts Harout J. Samra, Miami, FL, cochair of the Section of Litigation’s Technology for the Litigator Committee.

In applying the material contribution test and determining that Richie and Dirty World were immune to Jones’s defamation suit, the Sixth Circuit considered several factors. First, while Richie and Dirty World selected statements for publication, their doing so did not materially contribute to the defamatory content of the statements for this reason alone. Second, their decision not to remove the posts also did not constitute materially contribution. Third, did not require users to post illegal or actionable content as a condition of use nor does the name of the website suggest that only illegal or actionable content will be posted. Fourth, the website operators did not compensate users for the submission of illegal content. Fifth, while Richie’s remarks may have been “absurd” and “ludicrous,” his comments did not materially contribute to the defamatory content of the posts. Sixth, Jones did not allege that Richie’s statements were defamatory, and the district court did not hold that Richie’s comments were themselves tortious.

The application of the “material contribution” standard is necessarily fact-sensitive. “So the contours of what constitutes a material contribution to the defamatory or otherwise illegal nature of a user web posting remain to be determined through continued case-by-case development of the law,” cautions Siegel.

Seeking Other Remedies 

The Sixth Circuit noted that “the broad immunity furnished by the CDA does not necessarily leave persons who are objects of anonymously posted, online, defamatory content without remedy.” The appellate court pointed out that Jones conceded that she did not attempt to file suit against the person whose comments Richie selected for publication nor did she subpoena the web operators to discover who authored the actionable posts. “Future litigants should carefully assess the actual role of website operators prior to asserting a claim against the operator. Jones sets a very high bar for what kinds of activities constitute ‘development’ by website operators under the CDA,” warns Samra.


Onika K. Williams is a contributing editor for Litigation News.

Keywords: Communications Decency Act, defamation, immunity, material contribution test

Related Resources

Copyright © 2014, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).