HuffPost Contributor Isn’t an “Agent,” So Their Content Qualifies for Section 230–KGS v. Huffington Post

August 15, 2022 · by · in Content Regulation, Derivative Liability, Publicity/Privacy Rights

This long-running lawsuit relates to publications made in 2015. I previously blogged a related Alabama Supreme Court ruling involving Facebook in 2019. In that post, I summarized the complicated and heart-breaking facts:

This case involves an allegedly “predatory” adoption. As usual with custody disputes, the facts are heartbreaking. The birth mom agreed to place her unborn baby into adoption, but then changed her mind. The adoption court eventually awarded custody to the adoptive mom. While the case was pending, the birth mom told her story to Riben, who published two Huffington Post stories criticizing the adoption. If you care to dive deeper, these appear to be the stories: part 1 and part 2. The stories named the birth mom, adoptive mom, and baby and included photos of the baby.

The ruling I’m blogging today involves Huffington Post’s alleged liability for Riben’s stories posted to HuffPost’s “Voices” (contributor) section. The lower court denied Huffington Post’s Section 230-based motion to dismiss and summary judgment motion. On appeal to the Alabama Supreme Court, the court rules that Huffington Post qualifies for Section 230.

The court runs through the standard Section 230 three-part test:

ICS Provider. HuffPost is “a Web-site operator.”

Publisher/Speaker Claims. The plaintiff alleges that “HuffPost, acting through its agent Riben, assisted in ‘creating, developing, and writing’ the articles.”

Third-Party Content. The plaintiff alleges that Riben was HuffPost’s agent because of HuffPost’s editorial involvement. The court disagrees.

Voices contributions went into a pre-publication queue for staff editors’ review. According to the court:

The editor would perform a cursory review of the submitted content to make sure it did not raise any obvious “red flags” as to certain subjects, such as racism, pornography, questionable medical advice, hate speech, and accusations of illegal activity. If submitted content raised a “red flag” with an editor, that content would not be published on the Web site. If the submitted content was accepted by the editor, it would be published, usually within 48 hours….

Once the content was published on the Web site, the content contributor was “locked out” of the content and could not edit or make changes to the content. To make changes to published content, a content contributor had to be let “back in” to the content by an editor. Once the changes were made, the content contributor would have to resubmit the content with the changes for editorial review.

With respect to Riben’s story, the HuffPost editor reviewed the post and approved it for publication. After publication, the editor “made formatting and technical changes to the articles, including, at Riben’s request, adding hyperlinks to the published articles.”

Soon after publication in 2015, the adoption agency’s lawyer demanded a retraction. This triggered some finger-pointing. Riben told HuffPost that she would defer to the HuffPost’s decision. HuffPost told Riben that it was her problem, not theirs. At Riben’s request, HuffPost added some disclaimers. In 2017, Riben asked HuffPost to remove the posts, but they are still online today.

So, do any of these interactions form an agency relationship? They do not.

“Riben was not HuffPost’s employee and was not paid by HuffPost for the content that she submitted to HuffPost…[the] blogger terms and conditions were agreed to by the parties and expressly stated that content contributors were independent contractors and could not hold themselves out as an agent or representative of HuffPost.” Thus, the court says “We find no independent evidence indicating that HuffPost retained a right of control over Riben and the manner in which she created content for the Huffington Post Web site.”

HuffPost’s editorial pre-review of Riben’s posts doesn’t change the analysis. “Those reserved editorial rights of HuffPost to review and approve Riben’s submitted content do not establish that it had control over K.G.S.’s creation of the content.” [I assume this is a typo? KGS should be “Riben”.] As for HuffPost’s post-publication control of the posts, “HuffPost was exercising traditional editorial and publishing functions that do not remove it from the umbrella of protection afforded to it by § 230.” Similarly, it’s immaterial that HuffPost selected Riben as a content contributor to its Voices section: “Although HuffPost selected Riben as a content contributor, nothing in that selection indicates that HuffPost reserved the right to exercise control over Riben in the creation of her content for the Huffington Post Web site.”

The apparent authority doctrine doesn’t change this result. Riben may have created the public impression that she worked for HuffPost, but HuffPost (the principal in this equation) never did. “Although HuffPost did not expressly state on Riben’s author page that Riben was not an employee or agent of HuffPost, nothing in Riben’s author page can be viewed as HuffPost’s holding Riben out as having the authority to act on behalf of HuffPost.” Plus, “to the extent that HuffPost took any action in this regard, it simply provided Riben a platform to post her content, which Congress has chose to protect through § 230 immunity.”

It also doesn’t matter that HuffPost displayed Voices contributions alongside its own original editorial content. “Whether a reader of the articles understands the author to be an unpaid independent contractor of HuffPost or an employee of HuffPost is not a consideration relevant to the determination of whether HuffPost is entitled to § 230 immunity, and a determination on that basis cannot deprive HuffPost, as an interactive-computer-service provider under § 230, of immunity to which Congress has determined that it is entitled.”

The Concurrence

In another instance of the bizarre fad of judges concurring with themselves, the opinion writer wrote a separate special concurrence (joined by 3 other judges) lamenting Section 230 because of the ruling’s impact on “the privacy interests of a minor.” The judge wrote: “Section 230 has carved out exceptions to the immunity afforded under that statute for actions that violate certain federal criminal laws, see § 230(e)(1), intellectual-property laws, see § 230(e)(2), and sex-trafficking laws, see § 230(e)(5). I am of the firm opinion that deeply personal matters touching on the privacy and sanctity of the family, such as the adoption at issue in this case, should be given the same — or, arguably, stronger — protection by Congress.”

No. Just no. This plea to Congress is a great example of why legislatures, and not judges ruling on specific cases, are better positioned to set the rules when multiple competing interests are at stake. The judges’ hearts may be moved to protect children, but an exception for “family sanctity” is qualitatively differ from the existing 230 exceptions in important ways (for example, the generally federal nature of the existing 230 exclusions). Though judges may think they are adding just one fact-justified exception to Section 230 in deciding their cases, over time plaintiff-sympathetic judges would collectively manufacture enough fact-driven exceptions to Section 230 to cause the entire statute to fail. So I applaud the judges’ restraint in applying the law provided to them by Congress rather than following their heart. Their special concurrence proves why such judicial restraint is essential.

Implications

The Agency Workaround to 230. In general, if the plaintiffs had established an agency relationship, they may very well have gotten around Section 230. However, most plaintiffs don’t try that route for the obvious reason that establishing an agency is hard, and most of the ordinary UGC interactions don’t come close. Instead, most plaintiffs go the Roommates.com route by arguing that the UGC service, through its editorial involvement, became an ICP of the third-party content. This bypass routinely fails, for good reason, but I’m a little surprised not to see it in play here given the plaintiffs took the harder and less obvious path.

Also, perhaps surprisingly, the court doesn’t cite other directly applicable rulings, especially Page v. Oath, which also held that HuffPost could invoke 230 for contributors’ posts. That case didn’t raise the agency issue as squarely as this case, but it certainly reinforces the court’s ruling. (In the Page case, the court said “This is not a controversial application of Section 230. The law was designed to foster a ‘true diversity of political discourse.’ By allowing third parties to comment on an issue of immense political concern, HuffPost did just that.”). Similarly, in Downs v. Oath (also uncited), the court held that HuffPost’s prescreening of a contributor’s photo upload didn’t overcome a 512(c) defense.

Editorial Discretion ≠ Editorial Dictates. It’s hard to establish an agency when a buyer asks a content producer to prepare content that meets the buyer’s specs. The buyer’s specifications for the outputs, by themselves, do not dictate how the content producer should do its work. If providing content specifications and retaining an approval right creates an agency, buyers would be reluctant to outsource content production to third parties.

This scenario implicates the quarter-century-old classic 230 case on the topic, Blumenthal v. Drudge. The court cites the case once without engaging its facts, even though the Drudge case strongly reinforced the court’s opinion. In that case, AOL paid Drudge for his content and he had no other income sources at the time; yet, Drudge was still independent of AOL. Given that ruling, I don’t think it matters that Riben was an unpaid contributor. Even if HuffPost had paid Riben, it shouldn’t have changed the agency analysis.

As it turns out, HuffPost is likely exceptionally careful about potential agencies due to the legacy of its Tasini lawsuit. Unpaid contributors sued HuffPost over a decade ago for compensation, and the court rejected the lawsuit. Surely that experience scarred HuffPost enough that it didn’t make any moves with respect to its contributors without vetting the agency risk carefully.

Case citation: Ex parte The HuffingtonPost.com, Inc., 2022 WL 3334419 (Ala. Supreme Ct. Aug. 12, 2022)

Some Prior Blog Posts Involving Huffington Post