In an unusual ruling, a Kentucky federal court judge held that a Web site operator could be liable for defamation under the Communications Decency Act for comments posted about a former schoolteacher’s promiscuity.

Kentucky resident Sarah Jones, who taught high school and was a cheerleader for the Cincinnati Bengals, sued TheDirty.com and its founder, Hooman Karamian (also known as Nik Richie) over two allegedly defamatory posts and related comments. In October 2009, a picture of Jones was posted with a former Bengals kicker accompanied by a caption stating that she had sex with every member of the football team. Two months later, beneath another picture of Jones, a poster wrote about locations at the school where she and her ex-boyfriend had sex and suggested that she had various STDs. Richie then added his own tagline: “Why are all high school teachers freaks in the sack? – nik.”

Jones filed suit under the CDA. Richie moved to dismiss, arguing that he was immune under Section 230 of the Act. U.S. District Court Judge William O. Bertelsman denied the motion and sent the case to trial. The first jury hung but the second jury found for Jones, awarding $38,000 in compensatory damages and $300,000 in punitive damages.

After the verdict, Judge Bertelsman released a written opinion “to explain further” his reasons for denying the defendant’s motion. Reviewing case law from federal appellate courts across the country, the judge found support in landmark CDA decisions like the 9th U.S. Circuit Court of Appeals’ Fair Housing Council of San Fernando Valley v. Roommates.com and the 7th Circuit’s Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist, as well as cases from the 8th and 10th Circuits. Although the panels in each of the cases cited ruled for defendants, finding Section 230 immunity, Judge Bertelsman found language in those cases on which to hang his hat. In Craigslist, for example, the court said that “[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination.”

“Thus, although courts have stated generally that CDA immunity is broad, the weight of the authority teaches that such immunity may be lost,” the court wrote. “That is, a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.”

The evidence presented showed Richie did just that, the judge said. Postings like those made about Jones “were invited and encouraged by the defendants by using the name ‘Dirty.com’ for the website and inciting the viewers of the site to form a loose organization dubbed ‘the Dirty Army,’ which was urged to have ‘a war mentality’ against anyone who dared to object to having their character assassinated.”

Richie himself added his own defamatory comments concerning the plaintiff, Judge Bertelsman wrote. “Thus, Richie’s conduct cannot be said to have been ‘neutral with respect to the offensiveness of the content,’ such that he is not ‘responsible’ for it within the meaning of [the CDA],” the court said. While Richie’s post itself did not form the basis for the action, “it effectively ratified and adopted the defamatory third-party post.”

“It is clear, therefore, that Richie did far more than just allow postings by others or engage in editorial or self-regulatory functions,” the court concluded, affirming the jury verdict and damage award. “Rather, he played a significant role in ‘developing’ the offensive content such that he has no immunity under the CDA.”

To read the opinion in Jones v. Dirty World Entertainment, click here.

Why it matters: Although Judge Bertelsman cited to several of the leading CDA §230 decisions, his conclusion makes the case an outlier as very few courts have similarly found that immunity did not apply to a Web site operator under the statute. An opinion filed after a jury verdict addressing a ruling prior to trial is also unusual, as Santa Clara University law professor Eric Goldman noted. “It’s clear that the judge is advocating,” he told MediaPost. “The judge isn’t trying to call balls and strikes. He’s trying to persuade the appeals court that there’s a 230 exception that applies to this case.” Whether or not the appeals court will agree remains to be seen – the defendants have already filed their appeal to the 6th U.S. Circuit Court of Appeals.