The Boundary Between Sec. 230 Immunity and Liability: Jones v. Dirty World Entertainment Recordings

Out in the wilderness of cyberspace is a boundary, marking the limits of Sec. 230 immunity. On the one side roams interactive services hosting third party content immune from liability for that third party content. On the other sides is the frontier, where interactive content hosts and creators meet, merge, and become one. Here host and author blend, collaborating to give rise to new creations. Hosts herd authors towards a potentially desolate land desecrated with insinuation, defamation, and slanderous allegations. Here, Sec. 230 has no power to protect. 

Photo by Ed Schipul, Flickr (cc)

We have been to the frontier before. The lead case unfolded in 2008: Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164-65 (9th Cir. 2008) (en banc). Here, according to the court, third-party authors that wished to post to Roommates.com were required to fill out a questionnaire and were required to answer questions that were alleged to violate federal and state housing discrimination laws. Where the host requires third-parties to answer certain questions, and answer in ways that are problematic, "such acts constituted the 'creation or development of information' and thus made the site an 'information content provider' within the scope of 47 U.S.C. § 230(c) and (f)(3)." Both host and third-party are now potentially liable for the created content. 

Jones v. Dirty World Entertainment Recordings, LLC (Eastern District Kentucky Aug. 2013) is the latest case to explore the frontier, and this litigation has been explored through two trials.  From the first trial, we are informed that:

Defendant Dirty World, LLC operates, from its principal place of business in Arizona, an Internet web site known as "the dirty.com." This web site invites and publishes comments by individuals who visit the site, and defendant Hooman Karamian, a/k/a Nik Richie ("Richie"), responds to those posts and publishes his own comments on the subjects under discussion.

Plaintiff Sarah Jones is a citizen of Kentucky; a resident of Northern Kentucky; a teacher at Dixie Heights High School in Edgewood Kentucky; and a member of the Cincinnati BenGals, the cheerleading squad for the Cincinnati Bengals professional football team.

The conflicted ensued over comments posted to Defendant's website about plaintiff. 

[T]he evidence conclusively demonstrates that these postings and others like them were invited and encouraged by the defendants by using the name "Dirty.com" for the website and inciting the viewers of the site to form a loose organization dubbed "the Dirty Army," which was urged to have "a war mentality" against anyone who dared to object to having their character assassinated.

Specifically, defendant Richie added his own comments to the defamatory posts concerning plaintiff. For example, on December 7, 2009, a third-party posted, under a large photo of plaintiff:

Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals . . Most ppl see Sarah as a gorgeous cheerleader AND highschool teacher . . yes she's also a teacher . . but what most of you don't know is . . Her ex Nate . . cheated on her with over 50 girls in 4 yrs . . in that time he tested positive for Chlamydia Infection and Gonorrhea . . so im sure Sarah also has both . . whats worse is he brags about doing sarah in the gym . . football field . . her class room at the school she teaches at DIXIE Heights.

To this, Richie added his own tagline, in bold: "Why are all high school teachers freaks in the sack? — nik."  The tagline and original message appear on one page as a single story.

For the court, defendant's website has crossed into the frontier and is a participant in the content creation. Not only is defendant driving third-parties to make scandalous comments, defendant, by adding comments "effectively ratified and adopted the defamatory third-party post." According to the court, defendant continued to drive third parties by commenting: "I love how the DIRTY ARMY has war mentality;" "Never try to battle the DIRTY ARMY;" and "You dug your own grave here Sarah." The court concludes, defendant "played a significant role in 'developing' the offensive content such that he has no immunity under the CDA." 

There is a boundary between neutral host and content creator. When an interactive service traverses that boundary, the host potentially moves out from underneath the protection of Sec. 230 immunity.