Is Section 230 of the CDA Done? Summary Of The Sarah Jones v. Dirty World Amicus Briefs

Section 230 of the CDA
Section 230 of the Communications Decency Act may be in jeopardy of becoming obsolete.

Out of all the Internet laws, which is the most important? Many folks may give Section 230 of the Communications Decency Act (CDA) top honors. Some people have even speculated that Section 230 of the CDA is primarily responsible for turning the Internet into a thriving bazaar of business and innovation.

What Does Section 230 of the CDA Do?

What does the powerful statute do? Section 230 of the CDA says:

“No 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.”

Less legalese, you say? Basically, Section 230 of the CDA says you can’t blame hosting companies or website operators for defamatory statements posted by users, blog commentators or other third parties.

The Lawsuit That Could Decimate Section 230 of the CDA

At the end of 2013, a shocking district court decision had many people wondering if Section 230 of the CDA was about to be decimated – all thanks to a legal spat between an ex NFL cheerleader and a prurient gossip site.

The case was Sarah Jones v. The Dirty.com. Jones had sued the website and its owner/operator, Nik Richie, for posting false statements of fact online. Since Mr. Richie had added a comment to the posting (“Why are all high school teachers freaks in the sack? – nik.”), Jones’ lawyers argued that doing so nullified Richie’s Section 230 protections. In the end, a judge ruled that Nik Richie was liable for a defamatory post. X reasoned that Richie “encouraged” and “ratified” the original defamatory post “by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie.”

When news broke of the decision, to put it bluntly, the Section 230 shit hit the fan.

Eager to voice discontent, and alarmed by the implications of the district court’s Section 230 decision, many businesses and organizations banded together to create amicus curias – friend of the court briefs – in support of Nik Richie and TheDirty.com. And on November 19, 2013, four different groups submitted four different amicus briefs to the court. Below is a summary of them.

What is An Amicus Curia?

An Amicus Curias, also known as a “Friend of the Court” briefs, are prepared by 3rd party that is not involved in a given lawsuit, but has a vested interest in its outcome. Usually, an amicus curia offers information related to the case in an effort to assist a court.

Opinion Corp. Pissedconsumer.com

Opinion Corp (a.k.a., pissedconsumer.com) filed an amicus brief in response to the Sarah Jones defamation victory over Nik Richie and TheDirty.com. Its main points are as follows:

  1. “Immunity is not forfeited unless the interactive service provider actively participates in the creation or development of the specific illegal content posted by the third party.”
  2. Since Nik Richie’s amendment was not a false statement of fact, and was added after the fact, it should not be considered defamatory.
  3. The District Court held that the mere nature and name of the website “encouraged” defamation. The Opinion Corp. friend of the court filing opines that the addition of “encouragement” as “an acceptable over rider of Section 230 of the CDA means judges will have free right to analyze websites based on” site names and subjects.
  4. Since Section 230 of the CDA specifically prohibits protection for copyright infringement, “analogizing contributory copyright infringement to ‘encouraging defamation’ is also misplaced.”
  5. The “Congressional intent” of Section 230 of the CDA is to “provide broad immunity for website operators.”
  6. “Non-defamatory responses are not part of defamatory statements and do not effect immunity.”

Online Service Providers Amicus Brief

Amazon, AVVO, Buzzfeed, Cable News Network, Curbed.com, Gawker Media, Magazine Publishers of America, The McClatchy Company, The Reporters Committee for Freedom of the Press, TripAdvisor, Yahoo and Yelp also submitted a joint friend of the court brief. Its main points are summarized below.

  1. In Jones v. Dirty World Entertainment Recordings LLC, “The court suggested that a website can be liable just because it selects posts to publish, does not verify their accuracy, and fails to remove them upon notice. But these are all ‘publisher’ functions with Section 230’s scope.”
  2. Affirming the current district court ruling would be disastrous because “if it is upheld, providers will have the perverse incentive not to review third party content at all, for fear of liability.”
  3. In the past, eight circuit courts endorsed a “broad immunity stance” that should be upheld as the standard.
  4. The district court’s ruling is dangerous because it means that “if a judge or jury finds that a website is somehow offensive and encourages users to submit content, the website provider loses immunity.”

Social Media Amicus Brief

Ebay, AOL, Facebook, Google, Linkedin, Microsoft, Tumblr, Twitter and Zynga also joined forces in an amicus curia focusing on Jones v. Dirty World Entertainment Recordings LLC. What did the social media giants have to say? Bullet points are below.

  1. “The protection afforded by Section 230 of the CDA has been and remains critical to the development and robustness of the Internet and interactive services…”
  2. The Jones court based its decision largely on Fair Housing Council v. Roomates.com LLC. The brief, however, argues that the case was misapplied in this instance because the Roommates’ opinion makes clear that unless an ISP “does not itself participate” in creating or developing content, it should be able to claim immunity under Section 230 of the CDA.
  3. Appealing to economic sensibilities, the social media-backed brief hammers home the idea that Section 230 creates an environment which allows the Internet to be “a medium for free expression and commerce.”
  4. Warns that if the Jones verdict stands as is, moving forward, free speech would be jeopardized because folks “would have little choice but to yield to a ‘heckler’s veto.’”

Amicus Briefs For Non Profits

The American Civil Liberties Union, ACLU of Kentucky, Electronic Frontier Foundation, Center for Democracy and Technology, Digital Media Law Project, Public Participation Project, Wendy Seltzer and Adam Holland also got in on the Jones v. Dirty World Entertainment Recordings LLC amicus brief action.

The associations brief reiterated much of what other concerned parties argued. They even acquiesced that “[a]ppellant TheDirty.com hosts frequently offensive – and indeed, sometimes actionable – gossip.” Notably, the watchdog groups reminded readers that “removing website from the legal line of fire when their users engage in actionable behavior was one of the primary motivations behind the enactment of Section 230.”

Do you run an online business that is being sued for defamation? Or maybe you are looking to file a defamation lawsuit against an online operation? Kelly Warner Law handles both plaintiff- and defendant-side Internet libel lawsuits. Our track record is excellent. We know how to handle situations swiftly, so you can get back to business sooner. Get in touch today.

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