As a follow-up to my previous article, I wanted to discuss the law regarding when you may be held liable for something that another person posts. For example, if your company runs a website that has a comment section, or if you post something on Facebook and one of your friends writes a comment. If these people break the law by defaming another person (see previous article), they could be sued for what they wrote. But what about you? Are you liable because you gave them a platform?
The short answer is: no, unless you published additional comments adding to the illegal nature of the statements.
The Communications Decency Act of 1996, 47 U.S.C. §230, was passed by Congress for specific policy reasons, including the policy: “to promote the continued development of the Internet and other interactive computer services and other interactive media.” One of the major policies set forth in the Communications Decency Act (“CDA”) was: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. §230(c)(1).
It was believed, correctly, that if website operators could be sued for comments made by users, no site would ever maintain pages that allow such public commentary. For example, most news sites allow users to comment on stories. If the news site ran a story about someone, and an anonymous person posted in the comments a false and defamatory claim about the person, should the news site be subject to a lawsuit? If it were so, we wouldn’t have comment sections under news stories, because the website would be getting sued daily. As it stands, the website is immune from suit under the CDA because Congress felt that such public discussion was one of the features of the Internet that should be encouraged to continue.
But, as with anything in the law, there is often room for exceptions and interpretations. Since the passing of the CDA, many plaintiffs have sued Facebook and various news websites, claiming that the CDA immunity should not apply for one reason or another. The vast majority of cases are thrown out at an early stage. But one line of argument has gotten some traction. What if the website displays the user comment in such a way that the website indicates agreement with the statement? What if the website edits the statement, but leaves in some false and defamatory material? What if the website actively encourages users to post negative information about people? At some point, does the website become a “co-author” with the original commentor?
Most of the circuit courts in the country, including the Sixth Circuit that covers Ohio, have developed a rule known as the “material contribution” test. Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398 (6th Cir. 2014). In Jones, a website that was basically a tabloid/gossip site, encouraged users to submit stories about famous and semi-famous people. A user sent in a bunch of information about a Cincinnati Bengals cheerleader, including all kinds of defamatory accusations about her character (she was also a school teacher in her day job). The website published the information and pictures that users supplied, and often added its own comments such as, “Why are all high school teachers freaks in the sack?”
The woman sued the website arguing that that the act of encouraging third parties to supply defamatory information, and then adding commentary that agrees with the information, made the defendant a “developer” of the information, and thus not entitled to immunity. The district court had agreed with her, but the Sixth Circuit reversed the decision, instead applying a “material contribution” test to determine whether a defendant can be considered the “developer” of the information. The court ruled that merely encouraging users to post gossip-type information was not the same as authoring the information, and that statements that applaud or agree with the information are also not the same as actually authoring the information. In order to become a “developer,” a website would have to add its own comments that – in and of themselves – are illegal or add to the illegality of the statement.
Therefore, if you run a website or are active on Facebook, you are not legally responsible for things that other people write, unless you “pile on” and add information that makes the statement defamatory. It seems that making comments that show some level of agreement is even permissible, as long as you don’t put in additional information. However, as with many things in life, it is often better to show discretion than to walk right up to the line. When you get to close to the line, you run the risk of accidentally going over the line. Or (just as bad), you might get sued anyway and end up having to spend money to defend yourself when a bit of good judgment could have avoided the whole mess.