toggle accessibility mode Case Tests Section 230 of Communications Decency Act

By Eric Misterovich (“The Dirty”) is a website dedicated to publishing gossip submitted by its users. The Dirty is owned by Nik Lamas-Richie (formally, Hooman Abedi Karamian), who adds a sentence or two of his own to the published pieces of incredibly trashy gossip. Notably, many not only consider The Dirty deplorable, but also highly discreditable as submissions are anonymous and fact checking is nonexistent.

Since its inception in 2007, the controversial website has been a target of lawsuits more than once. However, thanks to federal law 47 USC Section 230 (“Section 230 of the Communications Decency Act”), many of those cases have been preempted. Specifically, section 230 states that websites are not liable for content that is posted by third parties. This is especially true where users generate content, as is the case on The Dirty. In the past, section 230 protected websites from liability even where editorial control and knowledge of defamation existed. However, as of January 2012, one case in particular against The Dirty has seemingly sidestepped past legal precedent concerning section 230 defenses.

In particularly, ex-NFL cheerleader Sarah Jones initiated a lawsuit against The Dirty in 2009 when two posts appeared on its website alleging that she had STDS and that she engaged in sexual acts with an entire pro football team. The Dirty used Section 230 as a defense, and in January 2012 a Kenntucky federal judge rejected the defense stating that “the manner in which [the site] is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site.” Given this standard, the judge has been criticized for allowing his opinion of the website to overcome any true legal reasoning for rejecting The Dirty’s section 230 defense when it was used in the precise situation it was designed to prevent. The rejection of this defense allowed the case to go to a jury who awarded Jones $338,000 in damages. The court in this case remained criticized for a jury instruction that stated The Dirty, as the defendant, had the same duties and liabilities for re-publishing libelous material as the original authors of the materials. This instruction acts to completely override section 230.

Not surprisingly, The Dirty appealed, and along with their initial brief to the court, four separate amicus briefs were filed in support of it as well. Namely, signatories on the briefs in support of The Dirty include Amazon, AOL, eBay, Google, Facebook, Gawker, LinkedIn, Twitter, and more. Notably, the Sixth Circuit Court of Appeals has the discretion to reject the briefs.

The support from these user-generated companies is summed up by the AOL et al brief: “Amici cannot emphasize enough the degree to which the protection afforded by Section 230(c)(1), as consistently interpreted by courts, has played a critical role in fostering the development and growth of interactive services that both empower users and encourage innovation and self-regulation.”

Only time can tell whether the Appeals Court will confirm or reverse the lower court’s ruling.

If you are faced with an online defamation or privacy related issue, or if you are a computer service provider that wants to take advantage of Section 230 immunity, contact Revision Legal today at 855-473-8474.

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