So holds Monday’s Jones v. Dirty World Entertainment Recordings LLC (6th Cir. June 16, 2014) — another broad application of 47 U.S.C. § 230, the federal statute that immunizes online sites and companies from liability for what their users submit. The decision follows the trend of past decisions, and doesn’t add that much that’s new; but it does reverse a district court decision that had taken a somewhat different approach, and elaborates on a narrow exception to § 230 that had been developed by earlier cases, and keeps it narrow.
Here’s a long excerpt, that helps explain the big picture legal issue as well as illustrating how the legal rule is applied in this case (some paragraph breaks added); first, the background:
Section 230 of the CDA [Communications Decency Act] immunizes providers of interactive computer services against liability arising from content created by third parties. Section 230(c)(1) 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.” Although § 230(c)(1) does not explicitly mention immunity or a synonym thereof, this and other circuits have recognized the provision to protect internet service providers for the display of content created by someone else….
Section 230 marks a departure from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others. “Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and, indeed, at least with regard to publishers, even if unaware of the statement.” Congress, however, decided to treat the internet differently.
At its core, § 230 bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content.” … By barring publisher-liability and notice-liability defamation claims lodged against interactive computer service providers, § 230 serves three main purposes.
First, it “maintain[s] the robust nature of Internet communication and, accordingly, … keep[s] government interference in the medium to a minimum.”
Second, the immunity provided by § 230 protects against the “heckler’s veto” that would chill free speech. Without § 230, persons who perceive themselves as the objects of unwelcome speech on the internet could threaten litigation against interactive computer service providers, who would then face a choice: remove the content or face litigation costs and potential liability….
Third, § 230 encourages interactive computer service providers to self-regulate. An early internet case, Stratton Oakmont v. Prodigy, held that at common law the provider of an electronic message-board service was potentially liable for its user’s defamatory message because it had engaged in voluntary self-policing of the third-party content made available through its service.. Section 230 set out to abrogate this precedent. See S. Rep. No. 104- 230, at 194 (1996) (“One of the specific purposes of [§ 230] is to overrule Stratton Oakmont v. Prodigy and any other similar decisions ….”)….
Now, the exception for content providers that are “responsible, in whole or in part, for the creation or development” of the allegedly actionable information:
Section 230(c)(1)’s grant of immunity is not without limits, however. It applies only to the extent that an interactive computer service provider is not also the information content provider of the content at issue. An “information content provider” is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). A website operator can simultaneously act as both a service provider and a content provider. If a website displays content that is created entirely by third parties, then it is only a service provider with respect to that content — and thus is immune from claims predicated on that content. But if a website operator is in part responsible for the creation or development of content, then it is an information content provider as to that content — and is not immune from claims predicated on it. Thus, a website may be immune from liability for some of the third-party content it publishes but be subject to liability for the content that it is responsible for as a creator or developer. In short, immunity under the CDA depends on the pedigree of the content at issue.
Aware of this limit on § 230 immunity, courts have recognized that § 230 bars a claim if (1) the defendant asserting immunity is an interactive computer service provider, (2) the particular information at issue was provided by another information content provider, and (3) the claim seeks to treat the defendant as a publisher or speaker of that information. By contrast, a defendant is not entitled to protection from claims based on the publication of information if the defendant is “responsible, in whole or in part, for the creation or development of [the] information.”
This case turns on how narrowly or capaciously the statutory term “development” in § 230(f)(3) is read. The district court held, and Jones maintains on appeal, that Dirty World and Richie are not immune under the CDA because Dirty World and Richie are information content providers with respect to the information underlying Jones’s defamation claims because they developed that information. The district court set forth a test to measure whether a defendant is responsible for the development of the information grounding a plaintiff’s state tort claim.
According to the district court, “a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” Dirty World and Richie argue that the district court’s test of development is erroneous, swallowing the protection provided by § 230(c)(1) and undermining the purposes served by the CDA. They maintain that, properly understood, they did not develop the statements forming the basis of Jones’s defamation claims….
[I]t is not difficult to identify an overly inclusive and exclusive reading of “development.” An overly inclusive interpretation of “development” in § 230(f)(3) would posit that a website operator is responsible for the development of content created by a third party merely by displaying or allowing access to it. But to read the term so broadly would defeat the purposes of the CDA and swallow the core immunity that § 230(c) provides for the “exercise of a publisher’s traditional editorial functions.” Our recognition that the CDA affords immunity forecloses this overbroad reading of “development.”
By contrast, an overly exclusive interpretation of “development” would exclude all the publishing, editorial, and screening functions of a website operator from the set of actions that the term denotes…. [W]e have refused to adopt [this definition]. We have maintained that, despite the CDA, some state tort claims will lie against website operators acting in their publishing, editorial, or screening capacities.
Therefore, limited circuit precedent suggests the proper interpretation of “development of information provided through the Internet,” § 230(f)(3), means something more involved than merely displaying or allowing access to content created by a third party; otherwise § 230(c)(1) would be meaningless. And instances of development may include some functions a website operator may conduct with respect to content originating from a third party….
Consistent with our sister circuits [discussion of precedents omitted -EV], we adopt the material contribution test to determine whether a website operator is “responsible, in whole or in part, for the creation or development of [allegedly tortious] information.” And we expressly decline to adopt the definition of “development” set forth by the district court.
The district court read the foregoing decisions, identified Roommates as the guiding precedent, but derived a different rule…. First, the district court said that a “website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” Second, in a different formulation, the district court said that “if … [website] owners, as in the instant case, invite invidious postings, elaborate on them with comments of their own, and call upon others to respond in kind, the immunity does not apply.” …
We do not adopt the district court’s encouragement test of immunity under the CDA…. The district court elided the crucial distinction between, on the one hand, taking actions (traditional to publishers) that are necessary to the display of unwelcome and actionable content and, on the other hand, responsibility for what makes the displayed content illegal or actionable. This is the distinction that divides the holdings in Roommates and Accusearch, which stripped the respective defendants of the CDA’s protection, from the holdings in Roommates, Chicago Lawyers’ Committee, Johnson, Batzel, Nemet, and Zeran, which barred the respective plaintiffs’ claims.
In Roommates [a leading Ninth Circuit precedent -EV], the website was responsible for the alleged discrimination by requiring users to submit protected characteristics and hiding listings based on those submissions. In Accusearch, the website was responsible for the illegal purchase and resale of confidential telephone records. But in Chicago Lawyers’ Committee and Nemet, for example, the website operators provided a forum for user posts, did not require users to violate the law as a condition of posting, did not compensate for the posting of actionable speech, did not post actionable content themselves, and therefore were not responsible for the actionable speech that was displayed on their websites.
The district court’s rule does not neatly divide these cases. An encouragement theory of “development” does not obviously capture what was allegedly unlawful about the design of Roommate’s website, particularly its search engine, or Accusearch’s payment for unlawful conduct. And it does not obviously leave out the neutral fora created by the commercially oriented websites targeted by the claims in Chicago Lawyers’ Committee and Nemet (craigslist.com and www.consumeraffairs.com, respectively).
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 — e.g., unfavorable reviews of consumer products and services, allegations of price gouging, complaints of fraud on consumers, reports of bed bugs, collections of cease-and-desist notices relating to online speech. 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.
Moreover, under the district court’s rule, courts would then have to decide what constitutes “encouragement” in order to determine immunity under the CDA — a concept that is certainly more difficult to define and apply than the Ninth Circuit’s material contribution test. Congress envisioned an uninhibited, robust, and wide-open internet, but the muddiness of an encouragement rule would cloud that vision. 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.
The district court also suggested that when an interactive computer service provider adds commentary to third-party content that “ratifies or adopts” that content, then the provider becomes a “creator” or “developer” of that content and is not entitled to the CDA’s protection. 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. To be sure, a website operator’s previous comments on prior postings could encourage subsequent invidious postings, but that loose understanding of responsibility collapses into the encouragement measure of “development,” which we reject. As other courts have recognized, the adoption theory of “development” would undermine the CDA for the same reasons as an encouragement theory….
Now the application of the rule to this case:
We now apply the material contribution measure of “development” to the facts of this case. Jones’s defamation claims target the statements that were posted by a third party on October 27 and December 7, 2009. Because Dirty World and Richie did not materially contribute to the illegality of those statements, the CDA bars Jones’s claims.
Dirty World and Richie did not author the statements at issue; however, they did select the statements for publication. But Richie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7, 2009, simply because those posts were selected for publication. Nor can they be found to have materially contributed to the defamatory content through the decision not to remove the posts. The CDA expressly bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content.”
Unlike in Roommates, the website that Richie operated did not require users to post illegal or actionable content as a condition of use. Nor does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content will be published. Unlike in Accusearch, Richie or Dirty World did not compensate users for the submission of unlawful content.
The website’s content submission form simply instructs users to “[t]ell us what’s happening. Remember to tell us who, what, when, where, why.” The form additionally provides labels by which to categorize the submission. These tools, neutral (both in orientation and design) as to what third parties submit, do not constitute a material contribution to any defamatory speech that is uploaded.
Further, Richie’s comment on the December 7 post — viz., “Why are all high school teachers freaks in the sack?” — although absurd, did not materially contribute to the defamatory content of the statements uploaded on October 27 and December 7, 2009. Richie’s remark was made after each of the defamatory postings had already been displayed. It would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later commented on that speech. Although ludicrous, Richie’s remarks did not materially contribute to the defamatory content of the posts appearing on the website. More importantly, the CDA bars claims lodged against website operators for their editorial functions, such as the posting of comments concerning third-party posts, so long as those comments are not themselves actionable.
To be sure, Richie was an information content provider as to his comment on the December 7 post. But Jones did not allege that Richie’s comments were defamatory. And the district court did not hold that Richie’s comments were themselves tortious. Rather, the court concluded that those comments “effectively ratified and adopted the defamatory third-party post” and thereby developed the defamatory statements, thus ruling that the CDA did not bar Jones’s claims. The district court’s adoption or ratification test, however, is inconsistent with the material contribution standard of “development” and, if established, would undermine the CDA. Therefore, Dirty World and Richie did not develop the statements forming the basis of Jones’s tort claims and accordingly are not information content providers as to them.
Because (1) the defendants are interactive service providers, (2) the statements at issue were provided by another information content provider, and (3) Jones’s claim seeks to treat the defendants as a publisher or speaker of those statements, the CDA bars Jones’s claims….
[T]he broad immunity furnished by the CDA does not necessarily leave persons who are the objects of anonymously posted, online, defamatory content without a remedy. In this case, Jones conceded that she did not attempt to recover from the person(s) whose comments Richie elected to publish. She conceded that she did not attempt to subpoena Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty World and Richie. But, under the CDA, Jones cannot seek her recovery from the online publisher where that publisher did not materially contribute to the tortious content. Congress envisioned a free and open internet, and the immunity provision of § 230(c)(1), which subverts common-law publisher-liability, serves that purpose. While some exercises of the considerable freedom that Congress allowed online publishers are regrettable, freedom and its uses are distinct. Congress enacted § 230(c)(1) to preserve a free internet, and that enactment resolves this case.