No. 13-5946
Jones v. Dirty World Entm’t Recordings, et al.
Page 24
concluded that those comments “effectively ratified and adopted the defamatory third-party post”
and thereby developed the defamatory statements, thus ruling that the CDA did not bar Jones’s
claims. Jones IV, 965 F. Supp. 2d at 823 (“Defendants are mistaken, for the salient point about
Richie’s tagline is not that it was defamatory itself and thus outside CDA immunity, but rather
that it effectively ratified and adopted the defamatory third-party post.”). The district court’s
adoption or ratification test, however, is inconsistent with the material contribution standard of
“development” and, if established, would undermine the CDA. Therefore, Dirty World and
Richie did not develop the statements forming the basis of Jones’s tort claims and accordingly
are not information content providers as to them.
Because (1) the defendants are interactive service providers, (2) the statements at issue
were provided by another information content provider, and (3) Jones’s claim seeks to treat the
defendants as a publisher or speaker of those statements, the CDA bars Jones’s claims. See
Universal Commc’n Sys., 478 F.3d at 418. Given the role that the CDA plays in an open and
robust internet by preventing the speech-chilling threat of the heckler’s veto, we point out that
determinations of immunity under the CDA should be resolved at an earlier stage of litigation.4
See Nemet, 591 F.3d at 254 (“[I]mmunity is an immunity from suit rather than a mere defense to
liability [and] is effectively lost if a case is erroneously permitted to go to trial.”).
IV.
We note that the broad immunity furnished by the CDA does not necessarily leave
persons who are the objects of anonymously posted, online, defamatory content without a
remedy. In this case, Jones conceded that she did not attempt to recover from the person(s)
whose comments Richie elected to publish. She conceded that she did not attempt to subpoena
Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty
World and Richie. But, under the CDA, Jones cannot seek her recovery from the online
publisher where that publisher did not materially contribute to the tortious content. Congress
envisioned a free and open internet, see § 230(a)(1)−(5), and the immunity provision of
§ 230(c)(1), which subverts common-law publisher-liability, serves that purpose. While some
4
Certification of the interlocutory appeal sought by Dirty World and Richie could have obviated the need
for the second trial. An even earlier interlocutory appeal would have resolved the case prior to trial.
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