A bit about Reddit and CDA § 230, when CEOs crack jokes, and GAWKER constantly ruining things for everyone.

Steve Huffman, Reddit’s Chief Executive who goes by the moniker “spez,” recently altered a post on Reddit’s now-popular subreddit, /r/the_donald, a community dedicated to the near-fanatical promotion of Donald Trump. The comment was changed from “Fuck /u/spez” to “Fuck [one of the moderators of /r/the_donald].” The Edit stayed online for about an hour, and Huffman assumed responsibility shortly thereafter.

The /r/the_donald community served primarily to support Donald Trump’s presidential campaign. However, it also operates as something of a Poe’s Law accelerator where gross satire suddenly becomes truth. The most recent example claims Justin Trudeau’s biological father is Fidel Castro.

While the Poe’s Law machine they built appears cartoonishly untruthful at first—it galvanizes their fans into taking actions in real life—like sending literal tons of salt to the New York Times.

 

In the week leading to the Edit, Reddit administrators had been preoccupied with conspiratorial aggression emanating from /r/the_donald related to a pizza place. Some of the more vitriolic members of /r/the_donald created a new subreddit, /r/pizzagate, that was harassing Comet Ping Pong in Washington, D.C. Users were making prank phone calls and hurling death threats over social media.

 

They justified the harassment with a belief that the Clinton Foundation was running a child sex trafficking ring out of the pizza place. Administrators did the right thing and banned the subreddit. Huffman, after a week of this headache, engaged in a simple act of petty revenge and made the Edit.

 

Now, some users and attorneys are speculating about the impact the Edit may have on Reddit’s CDA § 230 safe harbor protections. This law allows places like Youtube, Reddit, and other Web 2.0 sites to exist. If someone posts a defamatory comment on Youtube or Reddit or another website, the person harmed cannot recover from Youtube or Reddit. Instead, they can recover only from the person who created the content. Without this safe harbor provision, websites that host user generated content could be liable every time a user posts defamatory content. And, because they typically have deeper pockets than most people who might post defamatory content, they—the content provider—would always foot the bill, even though the content creator bears weightier culpability.

 

In general, Section 230 protects those who merely transmit or host, but do not create, others’ content. This “Section 230 at 30,000 feet” view of the law has led some users to speculate that Reddit has exposed itself to substantial liability as a result of the Edit. This is not correct.

 

Section 230 does not treat every entity as either a content provider or a service provider. A company can be a content provider in some respects and a service provider in others.

This comes from the statute itself. “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.” 47 U.S.C. § 230 (c)(2). An “information content provider” is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230 (f)(2).

Breitbart, for example, authors its own editorials, but does not curate its comment section. It does not become a “content provider” of comments merely because it creates content users comment on.

As confusing as Section 230 can be, the idea that a single edit to a user comment would mutate Reddit or any other site into a content provider for all time is inaccurate.

 

Additionally, when companies have pierced their Section 230 protection they have to actually materially contribute to breaking the law. Roommates.com required users to input their age, gender, and whether they lived with children then matched roommates together in a fashion that violated fair housing laws. The key takeaway from Roommates applicable here is the court required the website materially contribute to illegal content.

 

Huffman merely told a group of anonymous moderators to fuck off. This is clearly not defamatory.

 

The other element the affected users would likely have to show are damages. While the CEO of a major tech company telling you to fuck yourself might make an impact in your life on a less anonymous site, the users in this particular group all enjoy their anonymity.

 

Another point of confusion comes from the recent Gawker lawsuit. It’s clear from that instance that fostering a company-wide troll culture proved to have negative implications in how courts perceive Section 230.

 

Gawker’s authors have been accused of manipulating the narratives in their comments section to stir controversy in a defamatory article. The Plaintiff is currently is on their fourth amended complaint but the judge in that case allowed it to move forward due to the allegation that a Gawker employee submitted a defamatory comment in their own comments section. The important take away from the Gawker case is that some judges like to give plaintiffs their day in court even if they have a complaint with less than great chances of success at trial. They merely need to allege that a website is the speaker to get their day in court.

 

On the whole, Section 230 typically comes down in favor of the content host. One court conducted a study of a little over three hundred Section 230 cases and found that in the vast majority of cases the court came down in favor of immunity. Hill v. StubHub, Inc., 727 S.E.2d 550, 558 (N.C. Ct. App. 2012).

 

While Reddit spoke in a less than stellar fashion as part of a joke, there’s no real cause of action for anyone to pursue. Nor does it magically change Reddit from a content aggregator driven by user submissions to a content provider across the whole site. But if Gawker signaled the start of a change across the circuits for Section 230, then merely alleging that a website is the author of defamatory content would preclude dismissal under Section 230. That is hopefully a judicial aberration in the 7th Circuit and not necessarily a new rule that will propagate.

Some of Reddit’s moderators and users may have hurt feelings and Reddit may face another round of rebuilding trust with the community, but there’s very likely nothing to take to a court.

 

 

 




About Brian Lynch

Brian Lynch graduated from the Georgia Institute of Technology with high honors and a degree in Public Policy studying science and technology policy. Brian earned a Juris Doctor from California Western in 2012. Brian is a member of the State Bar of California and admitted to practice in the U.S. Southern District of California and the U.S. Central District of California. Brian also manages and implements policy for an online community of over 40 million users and started www.goerwin.com in 2016 to tackle some of the pain points associated with trademark and copyright filing.


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