The legal system fascinates me. I have always wanted to be a lawyer ever since I watched every episode of Perry Mason as a kid . But I couldn’t hack the school. I do think it would have been badass to be a criminal litigator. I am envious of litigators debating in out a court room.
Last month I read about thedirty.com being sued and losing over 300k.
I really wanted to write about it cause up until now most bloggers, especially those posting 3rd party content, I thought were legally protected.
Anyway this case is lengthy so I talked to our litigator (he’s the guy that actually is in the courtroom and he’s vicious ) who did some research and went totally over the top and wrote this so I could post it.
By Patrick Cooper, Attorney
Bloggers and web site owners are constantly being sued for defamation, exposing the authors of the defamatory content to huge potential damages awards, and in some states punitive damages, if the claimant is successful. Since 1996, the Communications Decency Act (47 U.S.C. § 230) has provided those web site owners with immunity from lawsuits arising out of any content on their sites that was created by third parties, as long as the site owners did not participate in the creation of the defamatory content. Courts have described the CDA immunity as providing “robust” protection to web site owners, and courts have routinely cited the CDA as the basis for dismissing defamation claims against web site owners when the claims are based on third party content.
But a recent lawsuit in Kentucky federal court has caused some concern about whether the CDA immunity is eroding, and whether web site owners are losing the protections afforded by the CDA.
The Details about the Lawsuit
In 2009, Sarah Jones was a school teacher and was also a cheerleader for the Cincinnati Bengals. On October 27, 2009, an anonymous Internet user submitted the following message to the website www.thedirty.com:
Nik Richie, the owner of the site, selected this submission to be posted on the site. Jones claimed that the post was defamatory and she asked thedirty.com to remove the post, but Richie did not remove the post.
Richie approved this submission as well, and he added his own “tagline” to the post, stating: “Why are all high school teachers freaks in the sack? – nik.” Again, Jones asked that the defamatory post be removed, and Richie ignored the request.
In response, Jones filed a federal lawsuit against Richie (real name = Hooman Karamian) and against the companies that own the site (“Dirty Defendants”), making claims for defamation, invasion of privacy, liable, and intentional infliction of emotional distress. Because she did not know the identity of the anonymous people who submitted the posts to thedirty.com, Jones did not sue the individual(s)s who created those posts.
Not surprisingly, the Dirty Defendants filed a motion for summary judgment, asking the Kentucky Federal Judge to dismiss the lawsuit based upon the CDA immunity. The Kentucky Federal Judge denied the motion. As you can see from the Court’s Order, the Kentucky court found that the Dirty Defendants “encouraged development of the offensive content.” Specifically, the Court focused on several factors, including “the name of the site, the manner in which it is managed, and the personal comments of defendant Richie.” It appeared that the Kentucky court had decided Richie’s own tagline, added to the second post, meant that he participated in the creation of the defamatory comment, meaning that he was not entitled to protection under the CDA. Thus, the case headed to trial.
Although there have been hundreds of cases where the Communications Decency Act has been litigated, there have been very few, if any, cases involving the CDA that have gone to trial. At the January, 2013 trial, the jury was unable to reach a unanimous decision and the case therefore ended in a mistrial. Various news outlets reported after the trial that there were one or two holdouts who did not wish to hold the Dirty Defendants liable, but the rest of the jury had sought to find in favor of the Plaintiff Sarah Jones.
The Kentucky court scheduled a second trial, to be held in July, 2013. Prior to that trial, the Dirty Defendants filed another motion for summary judgment, and asked the Kentucky Judge, again, to throw the case out based upon CDA immunity. Once again, the Kentucky Judge refused, and relied upon the same analysis used in the first order denying the first motion for summary judgment.
A second trial was scheduled. Leading up to the second trial, the Dirty Defendants did not help their own cause in several ways. Just before trial, Richie posted a photo of an $11,000,000 check that he wrote to Jones as a joke, and the memo line of the check read “for a child molester.” Jones’ lawyer asked Richie about that check, and specifically about the child molester comment, during the second trial, and Richie testified that he posted that on his website because he “wanted to get it out there that we were awarding a child molester.” Richie also testified at trial that it was “not his job to fact check”, that he “does not want false material on his website,” and that he expects his website’s users to follow the terms of service listed on the website. The Dirty Defendants receive approximately 1,000 potential submissions each day and the editorial staff narrows those submissions down to the best 100 or 200, which Richie then reviews and decides which submissions get posted.
Also before the second trial, Richie tweeted the following tweet: “Retrial with sexual deviant child predator Sarah Jones starts July 8, 2013. A new jury will decide if I should cut her a check for $11,000,000.”
At the second trial, the Kentucky judge refused to instruct the jury on any issues relating to the CDA defense, and instead informed the jury that the Dirty Defendants were just as responsible for any defamatory content as the person who authored those posts. Jury Instruction No. 3 is completely contrary to the CDA law — instead of advising the jury that the Dirty Defendants “had the same liabilities for re-publishing libelous material as the author of such material,” the judge should have stated that the Defendants could not be treated as the publisher of those materials, and thus could not be held responsible for any defamatory content, as long as they did not participate in the creation of the defamatory content.
Because the judge did not allow a CDA defense, the Dirty Defendants focused a different defense: If the comments were true, they could not be defamatory; and if Jones ruined her own reputation and caused all of her claimed damages by her own conduct (meaning that the posts on thedidrty.com did not cause her any harm), that was another defense. Thus, the Dirty Defendants focused on the fact that Jones, then 28 years old, had recently pled guilty to charges associated with having a sexual relationship with one of her high school students. At the time of trial, Jones was engaged to be married to that 18 year-old former student. The Dirty Defendants argued that Jones therefore was responsible for causing any emotional or reputational harm to herself, and that the posts did not contribute to that harm.
The jury disagreed, and returned a verdict in favor of the Plaintiff, Sarah Jones, in the amount of $338,000. The jury awarded $38,000 in actual damages, and added $300,000 for punitive damages.
Should This Case Concern Bloggers and Web Site Owners?
Many commentators and legal scholars have sounded alarms about the Kentucky court’s decision refusing to grant CDA immunity to the Dirty Defendants. Specifically, some commentators have suggested that this lawsuit could be the start of a sea change in terms of how courts treat bloggers and web site owners who receive third party defamatory comments from their users.
I don’t expect this case to have much effect on the current state of the law, for a couple of reasons. First, the Dirty Defendants filed an appeal just a few days after judgment was entered, and therefore the Sixth Circuit Court of Appeals will have an opportunity to correct the trial judge’s errors on appeal and decide whether the Dirty defendants were indeed entitled to immunity under the CDA. Second, the facts of this case were incredibly unique and it will be difficult to replicate those facts in a subsequent lawsuit.
There are a few lessons that bloggers and web site owners, however, can take away from this decision. Most importantly, you have a very strong argument for immunity under the CDA as long as you do not participate in any way in the creation or development of the third party content that is posted on your site. In other words, as long as you simply allow third parties to post offending content, you should generally be protected from liability if you do not modify that content or add your own defamatory or otherwise wrongful content to the post or elsewhere on your site. Richie got himself into trouble by adding the tagline to one of the posts, where the Plaintiff could argue that the tagline itself was defamatory.
The troubling part about the Kentucky court’s decision is that it used Richie’s conduct as an editor, i.e., his decisions about which user submissions ultimately get posted on the web site, as one of the reasons why he was not entitled to CDA immunity. That decision is clearly inconsistent with a long line of cases where courts have held that editorial decisions made by web site owners and bloggers are insufficient to prevent someone from being entitled to CDA immunity. I am not aware of any courts that have followed the Kentucky court’s decision on that issue, so thankfully other courts continue to provide site owners with the broad protections to which they are entitled under the CDA, even if those site owners engage in editorial functions such as deciding which user posts to approve for posting.
It will be interesting to follow this case on appeal. The Notice of Appeal was filed on July 15, 2013, which means that it may be another year or more before the Sixth Circuit Court of Appeals issues its decision on the Defendants’ appeal. In the meantime, bloggers and web site owners should continue to refrain from altering or modifying third party content that is posted on their sites, but they should not lose too much sleep over the Kentucky court’s decision because the great majority of courts that have viewed these types of issues have properly applied CDA immunity and have given broad immunity to web site owners and bloggers based upon third party content.
Please note – This was written by one of my lawyers and not from me. If you are a blogger with concerns or Again I am not a lawyer so instead of contacting me – If you have any questions about CDA immunity or other issues affecting Internet law, contact a member of Fraser Stryker’s Internet Law Practice Group today.