Tabloid Site Cleared for Posts About Ex-BenGal

     CINCINNATI (CN) - TheDirty.com persuaded the 6th Circuit to vacate a $380,000 judgment that found the tabloid website had published defamatory comments about a former cheerleader.
     Sarah Jones, a former Cincinnati BenGals cheerleader and high school teacher, had filed the 2009 suit after The Dirty's founder, Nik Richie, refused to remove several posts about Jones from the website. The case is unrelated to a guilty plea Jones entered in 2012 to sex-abuse charges stemming from her affair with a 17-year-old student she taught at Dixie Heights High School in Edgewood, Ky.
     Before that relationship came to light, third-party users of The Dirty had used the website's anonymous-upload function to detail Jones' alleged sexual relationships with several Bengals players, as well as her supposed infection with several STDs.
     Comments by Richie, including "Why are all high school teachers freaks in the sack?-nik," appeared directly after the posts.
     Twenty-seven email pleas that Jones to Richie, as well as those sent by her father, failed to secure removal of the posts, so Jones sought damages for defamation, libel per se and intentional infliction of emotional distress.
     The allegations went before a jury but ended in a mistrial after the 6th Circuit affirmed in 2012 that Richie and his website were not entitled to immunity under the Communications Decency Act (CDA).
     A second jury trial in Covington, Ky., ended with an award of $380,000 in damages for Jones, but the 6th Circuit reversed Monday after agreeing with the website and its owner that the CDA protects them from content published by third parties.
     "Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties," Judge Julia Smith Gibbons wrote for the court.
     She said Zeran v. AOL, a 1997 decision by the 4th Circuit in which a user claimed AOL failed to remove defamatory messages in a timely manner, supports the reversal.
     "At its core, [Section] 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,'" Gibbons wrote.
     While "a website operator can simultaneously act as both a service provider and a content provider," the panel said that the CDA "bars a claim if ... the particular information at issue was provide by another information content provider, and the claim seeks to treat the defendant as a publisher or speaker of that information."
     Jones failed to show that Richie and his website "developed" the defamatory statements, Gibbons added, saying it "defeat[s] the purposes of the CDA and swallow[s] the core immunity that [Section] 230(c) provides" to define "develop" as meaning simply displaying or allowing access to third-party content.
     It was erroneous to find that Richie encouraged third-party users to post actionable speech, the panel said.
     This finding "misapprehended how other circuits ... have separated what constitutes 'development' in 230(f)(3) from what does not," Gibbons wrote. "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." (Parentheses in original.)
     It was also wrong to determine that Richie became a "creator" and forfeited immunity under the CDA by adding his own comments to the posts.
     "A website operator cannot be responsible for what makes another party's statement actionable by commenting on that statement post hoc," Gibbons wrote. '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."
     In clearing the website of any liability, Gibbons said that its "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," she added. '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." (Parentheses in original.)
     As for the content of Richie's comments, the panel also found no fault.
     "Although ludicrous, Richie's remarks did not materially contribute to the defamatory content of the posts appearing on the website," the 25-page opinion states. "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."
     The Electronic Frontier Foundation had supported The Dirty in its appeal.
     The plea Jones reached on the sex-abuse charges carried a sentence of five years' probation. Though the 29-year-old is barred from future teaching jobs, she did not have to serve jail time or register as a sex offender.