A “Dirty” Lawsuit: How a Sex Scandal Could Impact Online Defamation Law

by Greenberg Glusker Fields Claman & Machtinger LLP

A former high school teacher and NFL cheerleader sleeps with her student.  She faces widespread scorn, including scathing Internet comments.  Despite the scorn, she becomes engaged to the student.

It sounds like the plot of a made-for-TV movie.  But these facts form the basis of a landmark defamation lawsuit that could have ramifications for any website that allows users to post comments.

The Story

Sarah Jones is a former high school teacher and Cincinnati Bengals cheerleader.  She had a sexual relationship with a 17-year-old student.  They later became engaged.  (There are engagement photos to prove it.)

Nik Richie operates the gossip site “thedirty.com.”  In that role, he screens user posts, rejecting some and allowing others to be published.  He also sometimes adds his own comments to the posts.

A commenter to the thedirty.com posted a message stating that Jones had “slept with every other Bengal Football player.”  Jones requested that the post be removed; the website refused.

A few weeks later, a commenter to the same website posted another comment stating that Jones’ boyfriend “tested positive for Chlamydia Infection and Gonorrhea.. so im sure Sarah also has both.”  Richie wrote in response: “Why are all high school teachers freaks in the sack?”  Jones again requested that the posts be removed; the website ignored her requests.

The Lawsuit

Jones filed suit against Richie and the website, alleging that the comments were defamatory.  Richie and the website conceded that the comments were facially defamatory, but responded that they were not liable under the Communications Decency Act.

As this blog has discussed previously, the CDA immunizes providers of interactive computer services against liability arising from content crated by third parties.  This grant of immunity applies only if the interactive computer service provider is not also an “information content provider”— i.e., someone who is “responsible, in whole or in part, for the creation or development” of the offending content.

The immunity provided by the CDA is broad, and “[t]ypically, cases involving claims like Jones’ against websites are quickly dismissed.”  However, in one of the few cases to narrow the protections of the CDA, a federal district court has ruled that the defendants were not immune from liability.

The court found that a website operator forfeits immunity under the CDA if it “encouraged development” of the offensive content in question.  The court then held that “by reason of the very name of the site, the manner in which it is managed, and the personal comments of Richie, the defendants have specifically encouraged development of what is offensive about the content of the site.”

The court found that several factors support this conclusion.  First, the name of the site—“the dirty.com”—“in and of itself encourages the posting only of ‘dirt.’”  Second, Richie screened the posts, publishing some and deleting others.  Third, Richie added his own comments to certain posts.  Fourth, Richie referred to “fans of the site” as “the Dirty Army,” writing: “I love how the Dirty Army has war mentality.”

The Appeal

Richie and the website appealed the decision.  Signifying the importance of the case, prominent Internet companies, including Facebook, Google, Amazon, Microsoft, Yahoo, Twitter and eBay, filed briefs in support of Richie.

The defendants argued that the district court erred by applying the “encouraged development” test.  They maintained that the district court should have followed other appellate courts in finding that a website is immune from liability under the CDA unless it “contributes materially” to the alleged offensive content—a more difficult standard to meet.

The Internet companies agreed, arguing that the district court’s decision to adopt the “encouraged development” standard “significantly depart[ed] from the settled interpretation of [the CDA] and, if adopted by this Court, would not only contravene Congress’s policies as declared in the statute, but also introduce substantial uncertainty regarding a law that has been a pillar for the growth and success of America’s Internet industry.”

Jones countered that the “encouraged development” test was correct, and that Richie “developed the site to encourage defamatory material.”  Jones maintained that, by adding his own comments to the offensive posts, Richie adopted them as his own.

A panel of appellate judges heard oral arguments in the case on May 1.  The judges observed, and Jones’ attorney acknowledged, that the district court in this case is alone in adopting the “encouraged development” test.  The judges’ questions also indicated that they believe that the “encouraged development” test is inconsistent with the “contributes materially” test adopted by other circuits.

The judges likely will not issue a decision for months.  However, judges are loath to create a circuit split, and their questions indicate they probably will reverse the district court.

In the likely event that the court reverses, Jones will have little to cheer.  But websites such as Facebook and Google will breathe a sigh of relief.  As Richie’s attorney said: “All websites rise and sink by the same tide.  To take the CDA away from [The Dirty] — even if you don’t like that site — opens the flood gates for people to sue every website that hosts third party content.”


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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