With inescapable internet usage, online defamation cases are on the rise. And earlier this month, a Kentucky jury found that TheDirty.com defamed Sarah Jones, ex-Bengals cheerleader and ex-school teacher, awarding her $338,000 in damages. TheDirty.com’s website model invites users to submit pictures and commentary, which the moderator can choose to post. Jones sued based on a 2009 post called, “The Dirty Bengals Cheerleader,” where anonymous posters claimed Jones had sex with all of the Bengals players and had two STDs.
The story has made the news several times, and some of you might remember Jones from her well-publicized legal struggles over the last four years. The legal saga began in early 2010, when she mistakenly sued TheDirt.com (without the “-y”) for the posts on TheDirty.com’s website and received an $11 million default judgment. The victory was short-lived, and after the dust settled, Jones sued the correct party. Then, her trial was put on hold after Jones was criminally charged with having sex with a minor, which she plead guilty to in 2012. However, the case finally went to trial, and the jury found in Jones’s favor, which was made possible by an earlier court opinion that determined TheDirty.com did not qualify for immunity under Section 230 of the Computer Decency Act (CDA).
Under Section 230, “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 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.” To interpret Section 230, the court relied mostly on a 10th Circuit opinion, FTC. v. Accusearch, which concluded that “a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages the development of what is offensive about the content.”
So despite the fact that the posts were user-generated, United States District Judge William O. Bertelsoman held that the website “‘specifically encourage[d] development of what is offensive about the content of ‘the dirty.com’ web site,” which brought TheDirty.com outside the scope of Section 230’s protection. Several legal commentators have already questioned the validity of the decision, noting that the judge specifically criticized the word “dirt” in the domain name as encouraging defamatory materials and that the judge seemed to just plain dislike the website.
But now that a jury has decided in Jones’s favor, it appears that websites posting mostly user-generated content may have to be more weary of what they publish—at least for now. TheDirty.com’s lawyers have promised to immediately appeal:
“I’m happy,” says David Gingras, lawyer for the TheDirty.com. “We have spent three and a half years litigating against a federal judge who thinks the Internet is an Atari video game. To have an adverse judgment is never a good thing, but it’s good for us to get out of that court.”
In the meantime, the case is unlikely to have a large impact on non-user-generated websites—such as websites with comment boards—because of the unique facts surrounding TheDirty.com. As opposed to focusing on the fact that the post was third-party content, the court ultimately focused on how moderator, Nik Richie, runs TheDirty.com’s website:
This Court holds by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site. One could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): “I love how the Dirty Army has war mentality.”
By IT-Lex Intern Rachel Paxton-Gillilan (LinkedIn)