CINCINNATI (CN) – Several free-speech groups have gotten behind Thedirty.com’s as it appeals a jury decision finding it liable for defaming an NFL cheerleader.
The Kentucky branch of the American Civil Liberties Union, along with the Electronic Frontier Foundation (EFF), Center for Democracy and Technology, Digital Media Law Project and Public Participation Project, filed the amicus brief in the 6th Circuit on Tuesday.
Earlier this year, a jury awarded Sarah Jones $338,000 in damages following her suit against The Dirty relating to defamatory comments users had posted on the website.
The comments alleged that Jones had multiple STDs, and that the Cincinnati Bengals cheerleader had “slept with every” player on the team.
Jones won the case after the presiding judge denied immunity to Dirty World LLC and its editor, Nik Richie, ruling that the site promoted lewd and often defamatory comments.
In the amicus brief, the civil rights groups said that The Dirty and its affiliates “were improperly held liable for publishing on their website defamatory statements written by a third party.”
“Federal courts have consistently held that website operators may be held responsible for developing unlawful material only if the facts demonstrate that the operator unambiguously solicited or induced content that is itself unlawful,” Frost Brown Todd attorney Junis Baldon wrote. “No such facts have been found in this case.”
The brief cites text from the jury’s instructions to support the argument that the District Court should have granted immunity to Richie and his company.
“Appellants did not author, create, or develop the defamatory content at issue in this case; instead, they provided a platform on which others posted their own material,” Baldon wrote. “Indeed, nothing makes that plainer than the text of Jury Instruction No. 3 from the second Jones trial: it states that Appellants ‘had the same duties and liabilities for re-publishing libelous material as the author of such materials.’ The instruction flatly conflicts with the text of Section 230 [of the Communications Decency Act] and directed jurors toward a finding prohibited by law. 47 U.S.C. § 230 (f)(3); see also Green, 318 F.3d at 471. Accordingly, the jury instruction alone constitutes prejudicial and reversible error.”
Baldon distinguishes the case against The Dirty from ones where an online service provider had “direct and intentional participation in unlawful acts.”
“While some of the material hosted on its [The Dirty’s] site may be offensive, and while some of the appellants’ actions (such as subsequently commenting about offensive content) may be unseemly, they are neither independently unlawful nor sufficient to trigger the loss of Section 230 immunity,” he wrote.
The amicus briefs goes to on warn that denial of immunity could have serious ramifications for other websites.
“The District Court’s opinion, if upheld, would undermine intermediary immunity for other sites, threatening the existence of platforms that welcome undeniably legal though critical speech,” Baldon wrote.
“It is crucial for this Court to distinguish between the explicit solicitation of actionable information from users, and the general solicitation of information that might turn out to be actionable, or simply damaging to particular individuals or businesses,” he continued. “Revoking a website’s protection under Section 230 because the site solicits ‘negative’ content in the abstract would threaten a wide variety of specific sites and projects that serve undeniably important public purposes by leaving them vulnerable to precisely the kind of expensive legal challenge that followed here.”
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