Gawker, Legal Blog Held Not Liable for Defamatory User Comments

Dec. 8 — Two blog websites were not liable for defamatory user-generated comments, the U.S. District Court for the Northern District of Illinois held Dec. 4.

Judge John J. Tharp Jr. said the sites could not be liable for inciting defamatory comments and that allegations were not plausible that one site published employee-written comments as if they were user-generated.

The court did permit a limited portion of the defamation claim against one site to proceed based on the inaccurate suggestion of previously reported incidents of sexual misconduct.

Section 230 of the Communications Decency Act grants immunity to providers of interactive computer services against liability arising from content created by others. “No provider . . . 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). An information content provider under the statute is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided.”

Licensed attorney plaintiff Meanith Huon was charged with — but ultimately acquitted of — criminal sexual assault and abuse in 2008, and a second set of charges of cyberstalking and witness harassment against the same victim in 2009. Legal blog defendant Above the Law (ATL) published two stories about Huon's arrest and allegations, including a link to local media coverage and an updated post after Huon was acquitted. The articles also generated over 100 user comments.

One year after the ATL articles were published Huon sued ATL and associated individuals and entities for defamation and related tort claims. Defendant Gawker Media's blog Jezebel covered the defamation lawsuit in an article entitled “Acquitted Rapist Sues Blogger for Calling Him Serial Rapist” with links to the ATL stories. The Jezebel articles garnered over 80 user comments.

Huon amended his complaint to name Gawker and related entities as co-defendants. Huon claimed that Jezebel staff authored some of the purportedly user-generated comments.

CDA Preclude Liability for Comments

The court dismissed Huon's claims to the extent they sought redress for user-generated comments, agreeing with ATL and Gawker that such claims fell within CDA immunity.

Huon argued that the ATL and Gawker articles were specifically designed to incite defamatory comments, that they encouraged and edited defamatory comments and that they intentionally placed defamatory in a prominent position so as to attract similar responses. The court said, however, that creating a forum does not incite defamatory content as a matter of law, even if the forum is likely to attract unlawful postings, citing Dart v. craigslist Inc., N.D. Ill., 1:09-cv-01385, 10/20/09 (14 ECLR 1528, 10/28/09). The CDA has also consistent been applied when online publishers increase the prominence of particular content, the court said.

Huon also argued that some of the Jezebel comments were written by Gawker employees using aliases, but the court found this was not plausibly alleged. Huon did not make allegations about any particular comment or any specific employee, instead alleging based on a news report that some Gawker comments on some articles were employee-written and that Gawker may have a company-wide policy promoting such practices. Huon also failed to allege that any employee-written comments were written within the scope of the employees' job duties.

Substantive Defamation Claims

The court found that the Jezebel article and most of the ATL articles were not defamatory. The headlines and content of the articles were subject to the fair report privilege to the extent they accurately described or summarized the charges and court proceedings against Huon. The Jezebel article was also not defamatory per se because it was subject to the innocent construction rule — taken together, the headline and article clearly stated that Huon was acquitted, even if they were subject to the implication that he was actually guilty.

The court also said that Jezebel's hyperlink to the ATL article was protected under Section 230 of the CDA.

ATL's coverage was largely covered by the fair report privilege, the court said, except for a section suggesting that Huon's alleged victim should have Googled him and would have discovered news coverage of sexual assault and abuse charges against him. Because both sets of allegations against Huon concerned the same victim, the court said, this statement inaccurately suggested a second set of sexual misconduct allegations against Huon and were thus defamatory per se.

The court also dismissed an intrusion upon seclusion claim, saying Huon's allegations did not depict zealous journalists prying into private affairs, but rather sloppy journalists improperly interpreting readily available public material. As such, Huon did not plead any actionable intrusion.

Mandell Menkes LLC represented the ATL defendants. Giskan Solotaroff & Anderson LLP and Lynch & Stern LLP represented Gawker. Huon represented himself.