August 13, 2013

Section 230 Immunity Not Available For Website Commentor

Section 230 in the Communications Decency Act has typically been asserted as a defense by any website owner subject to a defamation claim based upon comments by a third party poster. However, a recent case from Kentucky highlights the fact that where the website owner actually participates in the comment creation, that website owner may not be able to avail itself of Section 230 immunity. In particular, a Federal Judge on Monday found that thedirty.com's owner was not able to use the Section 230 defense after having been sued for defamation by a former Cincinnati Bengals cheerleader based upon a post involving her sexual activities. The judge found that thedirty.com was not entitled to immunity because Section 230 does not apply when the owner added his own comments ratifying or adopting the posts posted by a third party contributor. In particular, the Federal Court opinion stated; "that is, a website owner who intentionally encourages illegal or actionable third party postings to which he adds his own comments ratifying or adopting the post becomes a "creator" or "developer" of that content and is not entitled to immunity".

While this case is fact specific, it does reiterate the importance of identifying whether or not a website operator has participated in any of the content creation whatsoever in assessing whether or not it may be able to avail itself of a Section 231 immunity defense. Whereas here, content was actually provided by the website owner, a lawsuit for defamation against the website itself, and or its owner, may be possible. You should speak to an internet defamation attorney if you believe that you have been harmed by on line defamation.

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