Section 230 of the Communications Decency Act (CDA) might be one of the most important and powerful pieces of American law.
This Section of the CDA makes the Internet the Internet. Without it, YouTube, Reddit, Craigslist, and even this blog might not exist.
Section 230 of the CDA immunizes website creates or “providers of interactive computer services” against liability arising from content created by third parties. Such immunity allows users to post content that may or may not be defamatory. Although this is largely the basis for “free speech” on the Internet, it also allows shady rumor sites like TheDirty.com to exist.
Unfortunately for one former Cincinnati Bengals cheerleader, Sarah Jones, upholding the sanctity of Section 230 cost her more than $300,000 in a case that appeared poised to crack the CDA’s broad Internet immunity provision.
Ms. Jones was a former member of the BenGals cheerleading squad and a high school teacher. She filed suit in 2009 against The Dirty and its founder Nik Richie after he refused to remove several anonymous user posts about her sexual promiscuity and supposed infection with several STDs. The posts were extremely cruel and lewd.
Jones sought damages for defamation, libel per se and intentional infliction of emotional distress in her lawsuit. The allegations went before a jury but ended in a mistrial after the 6th Circuit affirmed in 2012 that Richie and his website were not entitled to immunity under the Communications Decency Act (CDA). However, a second jury trial in Covington, Kentucky ended with an award of $380,000 in damages for Jones, $300,000 of which were punitive.
Yet despite the extremely offensive posts on The Dirty, the 6th Circuit, in Jones v. Dirty World Entertainment Recordings, LLC, et al., reversed the trial court’s award last month after agreeing with the website and its owner that the CDA protects them from content published by third parties. (full opinion here).
Specifically, the Court held that Section 230(c)(1) provides 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.” Although § 230(c)(1) does not explicitly mention immunity every circuit has found that this Section protects Internet service providers for the display of content created by someone else. See, e.g. Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (holding that “The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”)
The Court also provided guidance of some key terms such as: “‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2). These providers include broadband providers, hosting companies, and website operators like Dirty World and Richie.” Furthermore, § 230(e)(3) provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).
Additionally, the Court found that “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.”
As the Court explained, its finding departs from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others. Absent § 230, “a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and, indeed, at least with regard to publishers, even if unaware of the statement.” (internal citations omitted) Id. Congress, however, decided to treat the Internet differently.
Granted, Ms. Jones is certainly not thrilled with the fact that Congress chose to treat the Internet differently. Since it did, though, the 6th Circuit was right to reverse the jury verdict.
There is no doubt that what The Dirty did to Ms. Jones is — well — dirty. She should probably be compensated in some way for the hell it put her through.
However, to protect the freedom of the Internet, the Court had to uphold the sanctity of the CDA. Anonymous commenters are the bane of most people’s existence. Yet, they are also what makes the Internet so enjoyable. Holding content providers liable for the comments of its users would prevent any real social interaction through this powerful medium.
Ms. Jones was a victim here, no doubt. Yet Section 230 of the CDA is in place for a reason, and the 6th Circuit rightfully recognized that in this decision which should excite anyone with a blog or website.