Courts in Kentucky and Maryland — in a pair of cases involving the saucy website thedirty.com — have broken new ground by suggesting that website operators can waive immunity under the Communications Decency Act (CDA) for defamatory statements posted by others. The holdings in Jones v. Dirty World Entertainment Recordings, LLC and Hare v. Richie seem contrary to the intent of the CDA and cases that have examined when operators may be liable for "encouraging" defamatory posts.
Jones and Hare address what conduct by website operators will render them "responsible for creating" defamatory statements by others posted on their websites. The CDA theoretically immunizes operators for defamatory statements posted by others by prohibiting "providers of interactive computer services" from being treated as "the publisher or speaker of any information provided by another information content provider" (47 U.S.C. §230(c)(1)), and prohibiting courts from imposing liability "under any State or local law that is inconsistent" with the CDA (47 U.S.C. §230(e)(3)). However, it defines "information content provider" as anyone who "is responsible, in whole or in part, for the creation or development of information provided through the Internet" (47 U.S.C. §230(f)(3)) (emphasis added). Website operators have never been immune for their own posts because they are the "information content providers" of such posts.
The plaintiffs in Jones and Hare argued that the operator of thedirty.com is the "information content provider" of its visitors' defamatory posts because it generally encouraged defamatory posts and was therefore "responsible" for their "creation." However, the plaintiffs did not claim that the operator solicited specific posts from specific authors.
For years, courts have held that website operators are not "responsible for the creation" of defamatory posts by visitors merely because they use scandalous addresses like "ripoffreport.com" and invite visitors to post potentially defamatory statements. But in Jones, the Kentucky District Court held the operator of thedirty.com "responsible for the creation" of statements posted by visitors concerning a high school teacher's alleged promiscuity, merely because it named the website "thedirty.com," posted the comments without confirming their accuracy, and posted responsive comments like "Why are all high school teachers freaks in the sack?" Seven months later, the Maryland District Court in Hare denied a motion to dismiss a similar defamation action, to allow discovery on whether the operator of thedirty.com "encourages development of what is offensive about the content submitted by third parties."
At least one court in Missouri has criticized Jones, holding in SC v. Dirty World that "merely encouraging defamatory posts is not sufficient to defeat CDA immunity." Indeed, the courts in Jones and Hare incorrectly construe the relevant "content" in "information content provider" to be the entire website and conclude that the operator is "responsible" for developing all content on the website, even statements posted by others. Congress clearly intended that courts identify who is responsible for creating the defamatory "content" of specific posts — not whether operators generally encourage defamatory posts. Otherwise, it would be difficult not to hold every website operator responsible for every post on its website.
Nevertheless, because other courts may adopt the principles applied in Jones and Hare, website administrators should heed the following lessons:
- Website administrators can significantly reduce their risk of liability for others' defamatory posts by not posting any comments on their websites. By posting nothing, they can avoid the accusation of having stoked the defamatory fire started by their visitors.
- If you do post comments, avoid agreeing with or encouraging further discussion on defamatory posts. At least one court (SC v. Dirty World) has held that a website operator cannot be liable for encouraging another's defamatory post if its responsive comment "could [not] be seen as ratifying ... or encouraging further development" of the defamatory post.
- Do not write titles for statements posted by others on your website. At least one court has held a website operator responsible for creating titles to defamatory statements posted by others.
- Be careful what you name your website. Selecting a website name that suggests you want visitors to post "dirt" or "gossip" will invite judicial scrutiny, particularly if you take no steps to screen inaccurate "dirt."
- If you are asked to remove a defamatory post, remove it. At least one court has suggested that a website administrator should not be held responsible for a subscriber's defamatory post that it removed from the website upon request.