Sarah Jones, a high school teacher and former Cincinnati Bengal cheerleader, discovered several nasty posts about herself on TheDirty.com. The anonymous writer took stabs at her looks, and claimed she was not only promiscuous, but infected with sexually‑transmitted diseases. The website operator refused Jones’ requests to remove the posts, so she sued the site for defamation. Sarah Jones v. Dirty World Entertainment Recordings LLC.
A jury in Kentucky awarded Jones $300,000 in damages. However, a few days ago, the 6th Circuit Federal Court overturned that decision, holding that the Communications Decency Act (CDA) shields a website operator from liability for posting statements of a third-party provided the operator does not materially contribute to the statements. This is referred to as the “material contribution test”. The 6th Circuit Court reasoned that the operator of TheDirty.com did not require third parties to provide illegal content; he did not materially alter the content of the anonymous statements; and his post-hoc commentary, in and of itself, was not illegal. This is a case of first impression for the 6th Circuit, which is now following in the footsteps of other circuits.
How is this case important to you? It’s tougher to prevail against a website operator if, for example, a disgruntled employee/former-employee decides to post defamatory statements about you on someone’s website (i.e. TheGlassDoor.com). This case says that you will not prevail in a defamation suit against the website operator unless he materially altered the information. (If the operator removed profanity or posted only the first four sentences of a much longer piece, that’s not a material alteration.) Your recourse would be to seek the identity of the anonymous writer and sue the offender directly.
While the Communications Decency Act immunity is broad, it is not impermeable. Take precautions if your business website allows third parties to submit information, comments, blogs, or suggestions on your site. Train your developers, editors, and operators. Make them aware that they cannot materially alter the information and they cannot require third-parties to provide illegal content as a condition of their use. Establish a policy for the removal of objectionable comments. Liable or not, lawsuits can be expensive, and taking these steps may reduce the risks and costs associated with operating an interactive website that allows third party comments.