Cincinatti, Ohio - The Electronic Frontier Foundation (EFF) and a coalition of free speech advocates filed an amicus brief supporting thedirty.com's appeal of a defamation ruling that contradicts protections for website operators contained in Section 230 of the Communications Decency Act (CDA). In the brief, filed in the US Court of Appeals for the Sixth Circuit on Tuesday, the coalition argues that websites—even those that host offensive gossip—cannot be held liable for information posted by third parties.
The case centers around a 2009 message that a visitor posted to thedirty.com alleging that a teacher and a cheerleader for the Cincinnati Bengals had "slept with every" player on the football team. The subject of the post, Sarah Jones, then sued the site's operator, Dirty World LLC, and its editor and publisher, Nik Richie. A district court denied thedirty.com's claim of immunity under the CDA on the basis that the site "encouraged" defamatory content from third parties. A jury subsequently awarded Jones $338,000.
The ruling, if upheld, would have serious ramifications for free speech on the Internet. Since the passage of the CDA in 1996, courts have consistently held that website operators may be held responsible for unlawful material posted by users only if those operators directly solicited or induced the content. In this case, the district court denied immunity to the website based on other factors such as the website's name and cultivation of a negative atmosphere. The court's holding could open the door to lawsuits against a wide array of websites that host critical speech, including sites that display consumer reviews or reports of malfeasance.
"In order for speech to be protected online, the platforms that carry speech need to be strongly and unquestionably protected," EFF Senior Staff Attorney Matt Zimmerman said. "Website operators should not and cannot lose legal immunity for being offensive. They can only be held liable if they engaged in actionable behavior themselves. Here, that did not happen."
In addition to EFF, four groups joined the friend-of-the-court brief: ACLU of Kentucky, Center for Democracy & Technology, Digital Media Law Project and Public Participation Project. Wendy Seltzer and Adam Holland of the Berkman Center for Internet & Society at Harvard University and the Chilling Effects Clearinghouse also signed onto the brief.
"Section 230 gives website operators the certainty that they can offer platforms for user speech without the risk of spending every day litigating over comment sections," ACLU Staff Attorney Lee Rowland said. "The trial court's incorrect decision risks eroding that certainty."
For the full amicus brief:
Senior Staff Attorney
Electronic Frontier Foundation