Encouragement of Gossip Not Enough to Bypass CDA Immunity

The U.S. District Court for the Western District of Missouri recently ruled that TheDirty.com’s implied encouragement of harassing gossip through its editorial rhetoric did not amount to “development” of an offending online post that would undermine the website’s immunity under the Communications Decency Act (“CDA”).

The plaintiff in this case sued the website and its editor-in-chief for defamation and invasion of privacy arising from a third party’s online posting.  Visitors to TheDirty.com may post comments on a numerous topics, including including news, sports, politics, gossip or personal commentary about other individuals.  The editor-in-chief does not fact-check postings, but he does generally review them to weed out any that he considers inappropriate or “unduly offensive.”  He also at times engages in online banter about whether he might have a romantic interest in the subjects of posts.

The plaintiff sued over an online rant about her, together with her posted image, entitled “Nasty Church Girl.”  The editor-in-chief published the comment and image, and added his own unflattering comment.  What he did not do, however, was alter any portion of the posting, its title, or the image.

In a motion for summary judgment, the defendants argued that they were entitled to immunity from suit under the CDA  The CDA 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.”  CDA immunity does not extend, however, to providers or users of the service who become “information content providers.”  In other words, those who are “responsible, in whole or in part, for the creation or development of” a posting.

Interestingly, the defendants here were recently unsuccessful in asserting a CDA-based defense in a similar case in federal district court in Kentucky, where the district court decided that the defendants were not entitled to CDA immunity by virtue of their encouragement and commentary about an offensive online posting.  Here, the plaintiff urged the court to follow the holding from the Kentucky decision, most notably its conclusion that the defendant “encouraged” the offensive commentary.  Specifically, the plaintiff claimed that by virtue of the defendants’ encouragement, they are in effect responsible for “developing” the offensive posting about her.

Despite plaintiff’s arguments to the the contrary, the court granted the defendants’ motion for summary judgment.  Clearly, courts in the Eighth Circuit view CDA immunity broadly.    This conflicts with the relatively narrow interpretation given to the CDA in the Kentucky matter.

U.S. District Court for the Western District of Missouri stated that the CDA applicability is not only broad, it is relatively straightforward.  In fact, the court emphasized language in a decision by a federal district court in Arizona, “Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.”  The court stated further, the concept of content “development” under the CDA means a material contribution to the illegality of the conduct.

Examples of such conduct would be requiring such content, or paying for it.  Here, the court stated that the “Church Girl Post” was done entirely by a third party, the defendants did not induce it, did not know the subject of the post, and did nothing to alter it.  “This is precisely the type of situation that warrants CDA immunity,” the court said.

Mere encouragement of defamatory posts is not enough to overcome CDA immunity, the court explained.  The court also said that the fact that the defendants do not publish all posts does not mean, as the plaintiff argued, that they developed the content by hand-selecting “juicy tidbits of trash.”  It said case law fails to support that argument, instead it bolsters protection for a publisher’s exercise  of “traditional editorial functions,” such as deciding whether to publish an item.

The court also distinguished the circumstances in the Kentucky matter from those here.  In the former matter, the editor-in-chief did become engaged in the online discussions, and, unlike here, he refused to remove the offending posts despite the plaintiff’s request.

Richard B. Newman is a partner and Internet Defamation Attorney with the law firm of Hinch Newman LLP in New York and California, where they practice Internet Marketing and Communications Law.  Richard B. Newman can be reached at (212) 486-9494 or via email at rnewman@hinchnewman.com.