The Seventh Circuit Court of Appeals recently kept alive one of the multitude of legal entanglements ensnaring Gawker Media LLC, as the Court reversed and remanded a lower court’s decision to dismiss a plaintiff’s defamation claim involving defamatory third-party user comments. In its ruling, the Court emphasized that a media company such as Gawker can be liable for creating and posting (or inducing another to post) defamatory statements in a forum that the company maintains.
The plaintiff in Meanith Huon v. Nick Denton, et al., Case No. 15-3049, is an attorney who was acquitted on charges that he abducted and sexually assaulted a woman in 2010. Following his acquittal, the plaintiff sued the legal blog Above the Law for $100 million relating to an article published on the blog that suggested that he faced several different criminal rape charges. Jezebel, a blog owned by Gawker, later posted a story that linked to Above the Law’s coverage. The plaintiff claimed that Jezebel’s story maintained the false impression that he had actually committed the sexual assault, and Gawker thus was added to the plaintiff’s lawsuit in 2011.
The plaintiff specifically took issue with third-party user comments posted in the comments section following the Jezebel article. The article generated more than 80 comments from anonymous third-party users, and the plaintiff alleged that Gawker served as an information content provider for those comments by encouraging and inviting users to defame him, shaping the content of the comments, and employing individuals who may have authored some of the comments themselves.
The district court dismissed the plaintiff’s claims against Gawker, finding that the complaint insufficiently pled that Gawker employees had actually authored the comments. The lower court relied on the Communications Decency Act, which serves to protect online media publishers from liability for third-party comments. Under Section 230 of the Communications Decency Act of 1996, traditional online service providers are not viewed as publishers of “any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Even if an online service provider could be considered a “publisher” under traditional defamation law, courts have held that such operators cannot be found liable under Section 230 for defamatory postings by anonymous users, even if the operators maintained some degree of relevant knowledge. See, e.g., Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
However, in reversing the lower court’s ruling, the appellate panel of Circuit Judges Frank Easterbook and Ann Claire Williams and U.S. District Judge Staci M. Yandle determined that the general “immunity” that protects most online publishers from liability for third-party user comments did not extend to Gawker under the specific facts alleged in this case. Although a company like Gawker cannot be considered the publisher of information under the Communications Decency Act simply based on its action of hosting an online forum for third-party users to submit comments, the Court reasoned that Gawker’s comments forum in this instance operated as more than a passive conduit for disseminating defamatory statements. The Court held that the plaintiff’s fourth amended complaint devoted more than four pages to detailing Gawker’s alleged activities and suggested that Gawker employees may have anonymously authored comments in an effort to boost traffic to Gawker’s website. One user comment in particular may qualify as actionable defamation, as the comment clearly and unmistakably accused the plaintiff of committing rape, according to the Court. Thus, the Court determined that discovery will serve as the proper tool to test the validity of the plaintiff’s allegations relating to Gawker’s involvement in the third-party comment function. (“The Gawker defendants may well be correct in contending that none of Huon’s various allegations actually occurred, but this doesn’t mean that the allegations are so implausible as to warrant dismissal.”). Without first engaging in the discovery process, the lower court should not have dismissed the plaintiff’s claims, the Court held.
The Court also found that the lower court improperly dismissed two other claims – false light invasion of privacy and intentional infliction of emotional distress – as a result of the court’s dismissal of the defamation count.
The revival of this defamation lawsuit further muddies the crammed litigation landscape facing Gawker Media. The notable Hulk Hogan invasion of privacy case, in which the professional wrestler sued Gawker after the website ran an excerpt of one of his sex tapes, resulted in a $130 million judgment for Hogan and against the company. Gawker filed for Chapter 11 bankruptcy to block Hogan from seizing the company’s assets, and the bankruptcy filing stayed all other litigation against the company. In June 2016, Politico.com reported that Gawker was fighting at least ten separate lawsuits at the time of the bankruptcy filing. The New York Times similarly reported that five of those cases were defamation-related lawsuits. In this case, the Court was notified of the bankruptcy filing following oral argument. In a footnote, the Court stated that Gawker’s counsel informed the Court that the automatic stays were modified in order to permit the Court to render a decision.
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