Should Websites Be Concerned About Third Party Commentators?

Take a scroll with me; visit ESPN.com and read the latest article regarding speculation about where LeBron James should play next, or about how Richard Sherman was part of the latest scuffle to take place at an NFL minicamp. Instead of reading the content of the articles, go straight to the comment section. Typically, the comments section is reserved for those able to express articulate opinions, either agreeing with what the writer had to say above or expressing reasons as to why the author was incorrect in his story. However, at some point, you’re sure to stumble upon comments that stray from the heart of the story and start to attack the character of its subjects. In the past, such comments have typically been ignored and tossed aside as immaterial statements of the so called “cyber bully.” In this day and age, where most website comment sections are routinely linked to a user’s Facebook page, any post by a reader is able to gain traction and stay atop the comment section based upon the number of “Likes” it has acquired from like-minded observers.

As a result, it is no longer uncommon to see a post on an article at the top of the comment section that is unflattering and unfairly judgmental. Have you ever wondered why such comments are not addressed by the host site, or better yet, how the host site is able to escape liability for such defamatory statements? The answer is quite simple: the Communications Decency Act.

The Communications Decency Act – 47 USC § 230(c)(1) – states that “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.” Therefore, any comment posted on a website istreated as the sole content and statement of the commentator, and the website is afforded immunity from the person who is the subject of the comments looking to seek action based upon the remarks. Some may say that it is the website’s responsibility to monitor the activity of its users, and therefore, the website operator should be subject to at least some responsibility for the statements found thereon. However, in the Internet age, where literally one billion people have a Facebook account, it is almost impossible for a website to continuously supervise statements posted on its site.

The Communications Decency Act’s grant of immunity is not without its limitations. If the author of the article, and not the commenter, is the source of the defamatory material, the author – and potentially his or her employer through vicarious liability – will not fall under this exception. Stated differently, if the website somehow “materially contributes” to the defamatory nature of the post placed by the commenter, the website will fall outside the grant of immunity. In order to determine whether a website has committed this act, and is therefore exempt from immunity, the Sixth Circuit has stated that “[A] material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful.[1]” Therefore, the website must either: (1) be the author of the statements at issue; (2) require users to post statements as a condition of using the site; or (3) expressly encourage the illegal or actionable statements in some form or fashion. If none of these circumstances are present, then the website is immune, and only the commenter can be held liable for his or her post.

The question then is, because the comment usually links to the person’s Facebook profile (or other social network account), how come there are not more stories about the person who is the focus of the defamatory statements using the person’s profile to seek action? That answer is also simple. Usually, the subject of the statements is an entertainer or athlete who does not have the time to scour the web looking for every defamatory statement that goes against his or her personal interest. Furthermore, in the event such athlete or entertainer is a star of such magnitude as LeBron James or Richard Sherman, it is undeniable that there is at least one person on every article with a negative opinion, and the cost of litigation could reach levels even their multi-million contracts could not afford. And finally, in what is most likely the most obvious answer, athletes and entertainers have much more important things to do than concern themselves with what some person on the opposite side of the country has to say about them. It’s easy enough not to care about someone’s irrelevant opinion when you can spend your time admiring the spoils of your victories; for example, have you seen this thing?!

[1] See Jones v. Dirty World, No. 13-5946 (6th Cir. 16, 2014).

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