In a case that has a long history and has attracted a fair amount of media attention (at least in Cincinnati), the Sixth Circuit overturned a jury verdict exceeding $300, 000 against Dirty World related to posts on its website.  Sarah Jones v. Dirty World Entertainment Recordings LLC.  The Court recognized that the case was one of first impression in the Circuit, and it concerned the extent and scope of immunity under the Communications Decency Act for providers of interactive computer services.  The case arose after Jones, a former Cincinnati Bengal cheerleader, noticed several unflattering posts about her on the website and demanded that they be taken down.  The website did not comply, thus precipitating the lawsuit.  Jones alleged that several of the posts were defamatory and filed state law tort claims for which she ultimately recovered.  However, the Sixth Circuit reversed.

The CDA provides immunity for interactive computer services against liability arising from content created by third parties within certain parameters.  The Court recognized that this case turned on whether the website at issue actually developed the alleged unlawful content.  While recognizing that the Sixth Circuit has never addressed this question before, the Court turned to the wealth of authority from other circuits, which had struck a sensible balance in the interpretation of the relevant statutory language between an overly broad reading that would swallow the rule and an overly narrow one.  The Sixth Circuit expressly sided with the other circuits in adopting the “material contribution test” to determine whether the website actually developed the improper content.  This requires the website to be “responsible for what make the displayed content allegedly unlawful” in order to forsake immunity under the CDA.  Applying that test to the facts at hand, the Court found that while the website certainly encouraged its followers to post content, it did not encourage or reward the posting of unlawful or defamatory content.  Likewise, the fact that the website might make minor edits to the posts, such as removing profanity, did not trigger liability for actually developing the improper content.

This case is obviously significant with respect to the Sixth Circuit’s tackling of the issues of first impression under the CDA.  It is also noteworthy, however, for a footnote that was dropped near the end of opinion.  Apparently, the website operator had sought review on an interlocutory basis under Section 1292(b) earlier in the case, which the district court denied.  The Sixth Circuit noted: “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.”  Effectively, the Court was expressing frustration with the district court’s refusal to certify under Section 1292(b).  A tension created by this comment is that the Sixth Circuit has been increasingly conservative in granting Section 1292(b) certifications in recent years, and it seems to reserve the procedure for truly extraordinary circumstances.  The balance between frequent and sporadic interlocutory review may well be a Potter Stewart-esque determination, but it is certainly a matter on which a number of judges, both appellate and district, in this Circuit have differing views.  The Court’s observation here at the end of the day is, of course, correct.  Certification could have saved an enormous amount of resources that were subsequently wasted.  But the same could be said in many cases and the real issue is how should district courts be guided in exercising their discretion to certify under Section 1292(b).  We have certainly explored this issue a fair amount on the blog, and will continue to look for any insights that might shed further light on the practice of interlocutory certification at the Sixth Circuit.