TheDirty Gets Its First 47 USC 230 Win–S.C. v. Dirty World
By Eric Goldman
S.C. v. Dirty World LLC, No. 11-CV-00392-DW (W.D. Mo. March 12, 2012)
thedirty got a 47 USC 230 immunity–the first time it has qualified for Section 230–in the lawsuit by Stephanie Crabtree (S.C.). This isn’t thedirty’s first court victory; it won the Dyer and Gauck cases on the substantive claim elements, not on Section 230. In contrast, in January the Jones case denied a Section 230 immunity for thedirty, and this cast doubt on its immunity eligibility. Not only does this ruling vindicate thedirty’s eligibility for 47 USC 230, but the opinion even explains why the Jones opinion is wrong.
As usual, this case involves a user’s submission of a post and photo to thedirty. Nik Richie, thedirty’s principal, approved the post for publication and added his usual derogatory snark about the situation. Richie is legally responsible for his snark, but in this case it’s clearly not tortious. Instead, the lawsuit seeks to hold thedirty accountable for the third party material it published. As we know, stated that way, the immunity should apply clean and decisively.
Adopting the Accusearch definition of “development,” the court says a website “develops” third party content (and thus loses the immunity) if the website “contributes materially to the alleged illegality of the conduct.” The court gives two examples of this disqualifying behavior:
1) requiring or paying for the submission of illegal information
2) editing third party content to change its meaning (i.e., editing out the word “not” from a factual statement)
The element of “requiring” the submission of illegal content is a variation of the Roommates.com standard. The Roommates.com standard has proven unexpectedly defense-favorable, although the Roommates.com denouement showed the illogical of determining content illegality as part of an immunity determination. (I also made this point with the StubHub ruling from last week).
However, the “paying for illegal content” element is a dangerous bastardization of Accusearch. Many websites pay for UGC–for example, Epinions does, and so does YouTube. I don’t think the court means to say that paying for UGC automatically forecloses Section 230 immunity for that content (and I think several cases have found Section 230 immunity in those situations), but just like the StubHub ruling, the loose language will inspire yet more plaintiffs. Sigh.
Applying the standard, the court says thedirty didn’t “develop” the third party content:
it is undisputed that the Church Girl Post was unilaterally drafted and submitted by a third-party. The Defendants have further established that (a) they did nothing to induce a post specifically directed at the Plaintiff; (b) Richie does not personally know and has never knowingly spoken to the author of the Church Girl Post; (c) Richie had never heard of the Plaintiff prior to commencement of this action; and (d) the Defendants did not add to or otherwise alter the substance of the post. In addition, the Website does not require the posting of actionable material, and it does not pay for such information.
The plaintiff tried a few other arguments to defeat the Section 230 immunity:
* Richie “hand select[ed] those juicy tidbits of trash that are titillating to the public.” Citing Zeran, the court says Section 230 protects these editorial choices.
* having “the Dirty Army” and a category called “Would You?” constitutes content development. Just like the StubHub case, the court says that website architecture isn’t relevant to Section 230 analysis; the legal analysis should focus on the handling of the specific post in question.
* thedirty “encourages” people to post dirt. Citing Furber and Shiamili, the court says “merely encouraging defamatory posts is not sufficient to defeat CDA immunity.” Plus, the site has other categories that aren’t focused on dirt.
Finally, the court discusses the Jones precedent. The court tries to distinguish the cases factually, which I didn’t find persuasive. The court says that in Jones, Richie’s snark related to the user’s allegedly defamatory statement, while in this case Richie’s snark was just a derogatory reference to her appearance. Also, Richie removed this post in question, which he didn’t do in the Jones case. The latter fact contravenes Zeran’s teaching that Section 230 applies to a website’s decision to “withdraw” content, and of course many cases have emphatically stated that Section 230 applies even if the website receives a takedown notice and ignores it. So I don’t know what the judge was thinking here, but there you go.
Fortunately, the judge doesn’t just rely on the factual differences; the opinion also denigrates the Jones ruling. It says the Jones opinion “appears to adopt a relatively narrow interpretation of CDA immunity,” which conflicts with the “broad” immunity interpretations in the 8th Circuit (see the Johnson case). The court also says the Jones opinion shouldn’t have considered the website’s name because Section 230 analysis should be based on the handling of the specific UGC item.
The court ends with an odd admonishment:
to avoid any confusion–the Court disagrees with the Defendants’ apparent belief that they are immune for any and all postings on their Website. Instead, the Court simply holds that the Defendants are entitled to immunity under the facts of this case.
Three meta-observations about Section 230 litigation in light of some interesting parallels between this ruling and the StubHub ruling last week:
1) Both courts got to the right result but used unnecessarily sloppy language to get there, which will spur even more unmeritorious lawsuits. I wish judges wouldn’t reinterpret the standards so freely. It makes everyone’s lives so much more difficult.
2) Both courts expressly rejected plaintiffs’ efforts to attack the website’s architecture, instead requiring plaintiffs to show how the specific post in question lost its status as third party content.
3) It’s disconcerting to see both courts parsing the meaning of the word “development” as the immunity’s linchpin. After the Roommates.com train wreck, it’s clear that no one knows what the word “development” means. While the SC and StubHub opinions both get to a decent place, the more often that courts play around with the meaning of the term “development,” the more likely it is that we’ll see goofy defense losses. Defendants, if you’re fighting the Roommates.com battle, please try to get courts to focus on this standard from Roommates.com: “The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.”
Under that standard and any other reasonable interpretation of Section 230, thedirty qualifies for Section 230 immunity for third party content it republishes. Honestly, that’s not even a close question. This reinforces the Jones case was wrong, and it should be reversed on appeal. I hope the appellate court fixes the obvious error.