TheDirty.com is not exactly deserving of sympathy. Much like Playboy and Hustler pushed the boundaries of the First Amendment in the past, rumor sites like TheDirty.com are pushing the limits of Section 230 immunity for online defamation under the Communications Decency Act.
A judge and jury in Kentucky apparently have had enough. This week, a jury found TheDirty.com “encouraged the development of what is offensive” and was therefore liable for the defamatory posts about former Cincinnati Bengals cheerleader Sarah Jones. The jury awarded Jones $38,000 in actual damages and $300,000 in punitive damages.
As a refresher, Section 230 of the CDA provides: ”[n]o 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.” Because the websites are not the publisher or speaker, the sites can’t be liable for defamation. Most courts immediately dismiss website operators from defamation suits when the claim is based on user generated content known as UGC.
Although subjects of defamatory posts hate the CDA, the law is good. There would be no Google, YouTube, Twitter of Facebook if these sites had to defend, let alone be held liable for, each defamatory post by their users.
Jones sued Dirty World Entertainment Recordings which owns TheDirty.com. The site, as expected, immediately filed a motion to dismiss the complaint because all claims were based on the UGC. The trial judge denied the motion arguing the defendant purposefully seeks out and encourages defamatory content. The court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.” Therefore, the summary judgment was denied. With TheDirty.com as a defendant, it is not surprising the jury ruled in favor of Jones.
If you have had the unfortunate reason to visit TheDirty.com, you know the judge is correct in that they do everything they can to encourage defamatory and offensive content. I have argued before that the CDA should be amended to allow for claims against sites like this that encourage defamation. I always thought the change would come through the legislative process rather than judicial fiat. Not surprisingly, TheDirty.com is appealing. You can read more about the case here.
What does it mean?
If you run Facebook, the local newspaper site, or a community site regarding butterflies, you still have nothing to worry about. If you purposefully run an inflammatory site, you need to pay attention to what the court of appeals does with this case.
TheDirty.com asks people to “submit dirt.” Their submission form has entries for the “dirt,” and provides a link to upload photographs. The court seized on the fact that in response to the post about Jones, the site operator wrote “I love how the Dirty Army has a war mentality.” Facebook and the Christian Science Monitor website don’t do this.
The CDA is usually a slam dunk defense for websites that are sued over UGC. Plaintiffs first tried to argue the sites actually “created” the content. Now, plaintiffs will argue the sites are “encouraging” the defamation. While a good policy, I am not sure it will hold up on appeal without a change to the statute by Congress.
So, what about sites like RipOffReport and PissedConsumer.com? Is the next line of attack that they “encourage” defamatory content? I would not be surprised if a plaintiff is making that argument right now in response to a motion to dismiss.
We will keep our eye on the appeal.