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CDA Immunity Lives: TheDirty Online Gossip Opinion Reversed

By William Peacock, Esq. on June 17, 2014 | Last updated on March 21, 2019

Whew. Even when you know a dangerous and terrible precedent is likely to be overturned, it's never over until it's over, right?

Well, it's over, barring en banc or U.S. Supreme Court review. Both of those seem like long shots, considering the Sixth Circuit's opinion falls in line with every other circuit to consider Communications Decency Act (Section 230) immunity.

Sarah Jones, a Cincinnati Bengals cheerleader and teacher who slept with a student, took umbrage at user-submitted gossip on (calling her promiscuous, STD-ridden, and not so easy on the eyes). The the law seemed clear before her case was decided: Websites aren't liable for what their users say. A district court, however, botched the law completely, and held liable for the gossip.

Yesterday, the Sixth Circuit thankfully and predictably reversed.

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No 'Encouragement' Test

Part of the district court's flawed rationale was that because the site's operator Nik Richie added his own quips and commentary, and encouraged users to submit gossip, he and the site could be held liable under an "encouragement theory" -- an extension of the language from the statute which does provide immunity when the defendant is "responsible, in whole or in part, for the creation or development of [the] information." (emphasis added)

The Sixth Circuit was not a fan:

More importantly, an encouragement test would inflate the meaning of "development" to the point of eclipsing the immunity from publisher-liability that Congress established. Many websites not only allow but also actively invite and encourage users to post particular types of content. Some of this content will be unwelcome to others [...]. And much of this content is commented upon by the website operators who make the forum available. Indeed, much of it is "adopted" by website operators, gathered into reports, and republished online. Under an encouragement test of development, these websites would lose the immunity under the CDA and be subject to hecklers' suits aimed at the publisher.

No 'Adoption' or 'Ratification' Test

The panel also rejected the notion that commenting on, or "ratifying" someone else's comments, exposes you to liability:

An adoption or ratification theory, however, is not only inconsistent with the material contribution standard of "development" but also abuses the concept of responsibility. A website operator cannot be responsible for what makes another party's statement actionable by commenting on that statement post hoc.

What's the Rule? Immunity

If you have a website that accepts and displays user-submitted content (comments, forums, or even full blog posts), you're almost certainly immune, even if you comment on the content or actively curate it. Note that your comments aren't protected if they are independently actionable, but you can't be held liable for user-submitted defamation, even if you promote it:

Congress envisioned an uninhibited, robust, and wide-open internet [...]. Accordingly, other 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. [...] We do the same.

Crossing the Line: Material Contribution Test

Obviously, at some point, editing becomes more than passive. The Sixth Circuit, joining many other circuits, adopted the Ninth Circuit's material contribution test. In Roomates, that circuit explained the line:

A website operator who edits user-created content -- such as by correcting spelling, removing obscenity or trimming for length -- retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality. However, a website operator who edits in a manner that contributes to the alleged illegality -- such as by removing the word "not" from a user's message reading "[Name] did not steal the artwork" in order to transform an innocent message into a libelous one -- is directly involved in the alleged illegality and thus not immune.

Crisis averted. Immunity restored. Troll on, dear netizens.

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