Online publishers still aren’t usually liable for user-generated content

A federal court this week reversed a lower court ruling that would've upended that precedent

A federal appeals court judge decided earlier this week that a gossip site is not liable for content it invites users to submit, even if some of that content is illegal in some way, making it the latest decision that immunizes websites, including news sites, against liability for user-generated content.

The US Supreme Court has never addressed the issue, so there is no national standard for whether online sites and companies are liable for user submissions, though nominally protected under Section 230 of the federal communications decency act.

The court’s decision on Monday, which reversed a $338,000 judgment against, leaves in place, for now, immunity that websites enjoy when it comes to publishing third-party content—like online comments on news sites—as long as the website does not add any unlawful material to that content. (The same protection does not extend to letters to the editor in print publications, paper’s version of user-generated content.) Plaintiffs can sue the author of the comments, but not the operator of the website where the comments are posted unless the website materially changes a user’s content from lawful to unlawful.

So news editors should still feel comfortable working with reader contributions, including comments, said Jeff Hermes, Director of the Digital Media Law Project at Harvard’s Berkman Center for Internet & Society.

“It is still absolutely fair for an editor of an online news site to believe that they have editorial control, not only over the content that they generate but also over user comments,” Hermes said. “They should feel some comfort from this decision that they can actually work with user comments, moderate those comments as they see fit, and otherwise try to control what appears on their site,” he said.

“But,” he added, “they should remain wary of doing anything to those comments that changes the meaning of the comments.”

The case had been watched closely by media organizations. A federal judge in Kentucky allowed a defamation suit to be brought against and its owner, Nik Richie, after users allegedly submitted unlawful content to his site. Amicus briefs were submitted by several media organizations. BuzzFeed, Gawker, Advance Publications, Inc., and The McClatchy Company were among the signatories on one friend of the court brief. Other circuit courts had previously held that websites were immune from such suits, because the courts found that though the websites published the content, they did not author it. If the website owner had authored the content, or materially contributed to authoring what made the content illegal, then the website could be held liable.

In addition to posting and publishing celebrity gossip and photos, encourages users to submit salacious content. Some of its users allegedly crossed the line in submitting information that defamed former Cincinnati Bengals cheerleader and high school teacher Sarah Jones. In 2009, a Kentucky federal judge allowed Jones to sue the website and its owner, Nik Richie, over user postings (now removed) that accused her of having a sexually-transmitted disease and claimed that she “has slept with every… Cincinnati Bengal football player,” according to court records. A jury found in Jones’ favor; this week’s decision reversed that finding. Had that verdict been allowed to stand, it would have caused disruption throughout the online media industry, setting up a constitutional challenge to free speech that likely would have gone before the US Supreme Court.

Jones’ attorney, Chris Roach, told an NBC affiliate in Cincinnati that he will ask the US Supreme Court to hear the case, but it is unlikely that the high court will since there doesn’t appear to be much disagreement among the circuit courts, Hermes said.

“You can’t force websites to take down information that’s up. There is no recourse,” Roach told a reporter at WLWT. “Your reputation is damaged and that’s it.”

Jones could have sued the people who submitted the comments for defamation; even if the commenters are anonymous, she could have gone to court to learn the names of the people who submitted the defamatory content and sued.

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Tracie Powell writes about the media and media policy, specifically on issues regarding piracy, media ownership, government transparency and the business of journalism. A graduate of Georgetown University Law Center, she lives in Washington, DC. She has contributed to Poynter, NPR, and Publica, the first nonprofit investigative journalism center in Brazil.