Recent decisions illustrate that courts continue to immunize Internet and email users from defamation liability in most situations. They are immune as long as they do not “materially contribute” to the alleged defamation that they host, post, or send. Still, users would be wise to be careful about what messages they endorse.
In its recent decision in Jones v. Dirty World Entertainment Recordings LLC, et al, __F.3d __ (6th Cir., June 16, 2014), the Sixth Circuit confirmed that the Communications Decency Act of 1996 protects website owners from defamation claims when they do not, in effect, enhance defamatory posts authored by third parties.
Section 230 of the Act immunizes providers of “interactive computer services” from liability arising from defamatory content that is posted by third parties. In interpreting this law, courts have held that certain websites are providers of interactive computer services and are immune from defamation suits so long as postings are made by third parties, and the sites do not add their own defamatory content.
Jones is particularly interesting because although the defendant website owner was found to be immunized by the statute, the content seemed particularly defamatory. Sarah Jones was a teacher in Edgewood, Kentucky, and a member of the Cincinnati BenGals, the cheerleading squad for the Cincinnati Bengals. In late 2009, three sexually defamatory posts naming Ms. Jones were displayed on www.TheDirty.com. Each of the anonymously authored posts was followed by a one or two sentence observation by site owner Nik Lamas-Richie.
Perhaps the most egregious post was the following:
THE DIRTY ARMY: Nik, here we have Sarah J, captain cheerleader of the playoff-bound Cinci [sic] Bengals…most ppl [sic] see Sarah as a gorgeous cheerleader AND high school teacher…yes, she’s also a teacher…but what most of you don’t know is…her ex-mate…cheated on her with over 50 girls in four years…in that time he tested positive for chlamydia infection and gonorrhea…so I’m sure Sarah also has both…what’s worse is he brags about doing Sarah in the gym…football field…her classroom at the school she teaches at Dixie Heights.
Appearing directly after this post, Richie remarked “why are all high school teachers freaks in the sack – Nik.” Jones sued the website and its owner, Richie, for defamation.
Dirty World and Richie moved for summary judgment, and argued that §230(e)(1) of the Act gave them immunity from liability for content created by third parties. The District Court denied the motion and held that there was no immunity under the statute.
The Sixth Circuit reversed the District court and adopted the material contribution test that was first enunciated in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). In Roommates, the Ninth Circuit held that where a website provided pre-populated answers to a questionnaire for its users, it “materially” contributed to the content, and thus became an “information content provider” that was not immune from liability.
Applying this material contribution standard, the Sixth Circuit in Jones found that neither the website nor Richie provided the content contained in the statements at issue. Although Dirty World and Richie selected the statements for publication, they did not materially contribute to the defamatory content of the statements by selecting them for publication nor by refusing to remove them upon request. The defendants were thus not content providers, and so were immune from liability Additionally, and notably, the Circuit Court found that Richie’s comment following the allegedly defamatory post did not materially contribute to the defamation.
The court held: “It would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later commented on that speech. Although ludicrous, Richie’s remarks did not materially contribute to the defamatory content of the posts appearing on the website.”
The court seemed to recognize that this was a close call, and added in the opinion that Jones never alleged that Richie’s own comments were defamatory in and of themselves. One wonders what the results would have been had the plaintiff Jones alleged that the statement was defamatory.
Jones brings to mind another defamation scenario involving digital media, but one that is far less common in the cases. Specifically, how have courts treated defamation allegations when a person receives and then forwards a defamatory email or statement? And what happens when the person who forwards that statement adds his own content?
Two California state cases have illustrated the issues that arise in email defamation cases when one adds content to a message. In Barrett v. Rosenthal, 40 Cal. 4th 33, 51 Cal. Rptr. 3d 55, 146 P.3d 510 (2006) the defendant Ilena Rosenthal received an email containing an article from a co-defendant. That article accused Stephen Barrett of stalking someone. Rosenthal then posted a copy of the defamatory article to a website. The California Supreme Court held that Rosenthal was immune under the Act because she had made no changes in the article that she republished. The Barrett court speculated that a different result might occur if somebody receives an email and then distributes it with additional content that is possibly defamatory.
Such a case arose and was decided by the Court of Appeals for the Fourth District in California in 2010, in the case of Phan v. Pham, 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791 (2010). In Phan, the president of a Vietnamese-American veterans’ group sent an email to some fellow veterans accusing plaintiff Hung Tan Phan of having been disciplined by the Vietnamese Navy for abusive behavior during the Vietnam War. Defendant Lang van Pham received the email and forwarded it to one of his fellow veterans but with an introductory paragraph. That paragraph stated, “Dear Kmap, everything will come out to the daylight, I invite you and your classmates to read the following comments of [name of president of veterans’ organization].” At issue for the court was whether this introductory paragraph removed the immunity that the sender would otherwise have under the Communications Decency Act as the user of an Internet service provider.
The Phan court applied the “material contribution” test enunciated in Roommates. Not surprisingly, the court found that defendant Pham did not make a material contribution to the allegedly defamatory email. This case was probably correctly decided, and Pham’s cryptic reference to the clarifying property of daylight was vague enough to allow the court to immunize the communication without much controversy. Still, one was left wondering what the result might be in case in which the sender made a more ringing endorsement of the defamation. A recent Connecticut state decision suggests an answer.
In Vazquez v. Buhl, 2014 WL 1795574 (Conn. App. Ct. 2014), Teri Buhl allegedly published several articles on her website that were defamatory to plaintiff Mitchell Vazquez. CNBC.com editor John Carney then published an online article titled, “The Sex and Money Scandal Rocking Hedge Fund Land.” He linked to Buhl’s piece, and told his readers that Buhl was a veteran financial reporter who “knows her way around the Connecticut hedge fund beat.” He urged his follows to read the story article by clicking on a link he provided.
Vazquez sued CNBC and Buhl for defamation and related causes of action. CNBC moved to dismiss on the grounds that it had immunity under Section 230. Vazquez did not claim that the content that Carney added was defamation, but that CNBC became a non-immunized information content provider by linking to the article and urging its readers to click on the link. The motion court agreed with CNBC.
The Connecticut Appellate Court upheld the lower court’s dismissal of the claims at issue, and observed that, “It is immaterial whether the defendant amplified, endorsed, or adopted the defamatory statements, because the defendant played no role in their composition.” The case thus stands for the proposition that linking to defamatory content is not itself actionable, and is immunized by Section 230.
These decisions are consistent with Congress’s goal in passing the Act, that service providers that merely host or provide content are immunized from defamation actions. Courts will likely continue to recognize the protections of the Act even as technology evolves. But although the trend is to recognize immunity, Internet and email users should be careful when hosting, sending, or endorsing material that could be considered defamatory.