Plaintiff Sarah Jones, ex-Bengal cheerleader and ex- high school teacher, has reason to cheer once again: she won a defamation lawsuit against the gossip website TheDirty.com. I previously mentioned this same case in a 2011 newsletter addressing the topic of the Communications Decency Act ("CDA"). You might remember Sarah Jones - her defamation case was put on hold after she was criminally charged with having sex with a minor who attended the school where she taught, which she pled guilty to in 2012. Here is what I had to say about the defamation suit at the time:

In 2009, Sarah Jones, a school teacher from Northern Kentucky, initiated litigation against Dirty World, LLC d/b/a thedirty.com after her name, photograph and the name of her high school were posted on thedirty.com with an article which insinuated that the likely has chlamydia and gonorrhea. See Sarah Jones v. Dirty World, LLC, et al.,Case No. 2:09-cv-00219-WOB, US.D.C.E.D. Ky at Covington. Nik Richie, the creator of the site, does not dispute that he posted the article. In fact, the vast majority of the content available at thedirty.com consists of submissions by third party users of the site that often contain vulgar and unflattering content. Absent the protection offered by the CDA, there is very little doubt that the Dirty World, LLC, would be facing liability as a re-publisher. Defendants in the Jones case, however, have argued that the CDA entitles them to absolute immunity. Given precedent from other jurisdictions, defendants are likely correct.

Well, my prediction was wrong. Plaintiff Sarah Jones, not the Defendants, prevailed in the suit - and she did so in a big way. The jury awarded her $38,000 in compensatory damages and $300,000 in punitive damages. The surprising outcome has made national headlines and many legal commentators are saying that the case could have serious ramifications for online free speech.

As background, Section 230 of the CDA immunizes providers of interactive computer services (every provider from Facebook to the Wall Street Journal) against liability arising from content created by third parties: "No provider...of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. §230(c). This grant of immunity applies only if the interactive computer service provider is not also an "information content provider," which is defined as someone who is "responsible, in whole or in part, for the creation or development of" the offending content. Id. at §230(f)(3). In the Jones case, Defendants claimed they were not "an information content provider" and had no role in the creation or development of the offending statements made about Jones.

The case, one of first impression in the Sixth Circuit, was before U.S. District Court Judge William Bertelsman. In his Opinion and Order denying Defendants' Motion for Judgment as a Matter of Law1, the Judge described what Nik Richie's role as the site proprietor included:

Richie acts as editor of the site and selects a small percentage of submissions to be posted. He adds a 'tagline'...[h]e reviews the postings but does not verify their accuracy. If someone object to a posting, he decides if it should be removed...[m]ost significantly, Richie adds his own comments to many postings...

The Court was left with the responsibility of determining if these actions constituted the "creation or development of the offending content." Because there was no Sixth Circuit case that addressed the issue, the Court considered two cases from other circuits to reach its decision.

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,2 the United States Court of Appeals for the Ninth Circuit held that the defendant therein was not entitled to CDA immunity for posting a questionnaire and requiring answers to it which were alleged to violate federal and state housing discrimination laws. By imposing this questionnaire requirement, the defendant became, according to the court, "much more than a passive transmitter of information." It became, at least in part, the developer of that information.

Likewise, in Federal Trade Comm'n v. Accusearch, Inc.,3 it was held that a web operator could not claim CDA immunity because he sold various personal data, such as telephone records, and in doing so violated certain federal confidentiality regulations. The court went on to establish the following immunity test: "...a service provider is 'responsible' for the development of offensive content only if it in some way specifically encourages the development of what is offensive about the content."4 (emphasis added).

Using these precedents, Judge Bertelsman found that, "by reason of the very name of the site, the manner in which it is managed, and personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site." With this ruling, the case had the green light to proceed to the jury.

After the verdict, defendants again moved for a judgment as matter of law. And again, Judge Bertelsman denied this motion and found that the jury verdict was properly rendered. In this Order, the Judge emphasized the text and purpose of the CDA. Though the CDA was originally introduced to limit obscenity and harassment on the Internet, it took on a very different form with the addition of the Cox/Wyden Amendment found in §230 (also discussed here). The Cox/Wyden Amendment was specifically created to provide website hosts and Internet service providers with near absolute immunity from liability for publishing third party content. However, the Court appeared to instead embrace the earlier intent of the Act, rather than its finalized provisions: "In the view of this Court, the Act's text indicates that it was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content." (emphasis added).

Legal commentators are questioning the validity of the court's reasoning. Opponents of the ruling believe that the judge failed to understand the protections afforded to providers of interactive computer services. If the judge's ruling stands, commentators worry that providers will be less likely to post defamatory content or encourage responses from online users. Thedirty.com's lawyers have vowed to appeal, likening the judge's knowledge of the Internet to an Atari video game. One thing is for certain: this case is far from over. In the meantime, Judge Bertelsman's ruling may serve as a welcome respite for individuals seeking to hold website hosts responsible for defamatory postings.

_{1 Jones v. Dirty World Entm's Recordings, LLC, 840 F. Supp.2d 1008 (E.D. Ky. 2012).}

_{2 Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 531 F.3d 1157 (9th Cir. 2009) (en banc).}

_{3 Federal Trade Comm'n v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009).}

_{4 Id. at 1199.}