January 22, 2011
thedirty.com's 47 USC 230 Defense Rejected on Motion to Dismiss--Jones v. Dirty World Entertainment
By Eric Goldman
On occasion I've ended up at thedirty.com. It's not my kind of site, but clearly I'm not the target audience. Given its stock-in-trade in trashing people, I'm a little surprised we don't have more lawsuits relating to it.
The plaintiff in this case is Sarah Jones, a Kentucky school teacher and Cincinnati Bengals cheerleader. Jones was featured in two user-submitted posts on thedirty.com, both of them saying not-nice-if-untrue things about Jones. Based on what I saw in this ruling, thedirty.com's editorial contribution beyond the user-submitted content appears to be minimal and probably legally inconsequential.
This lawsuit has an odd history. The plaintiff initially incorrectly sued thedirt.com (instead of thedirty.com) and got a large ($11M) but uncollectible default judgment. See the Politico coverage. Whoops. I still think the plaintiff is suing the wrong defendant due to 47 USC 230, but at least now the plaintiff is targeting the correct website.
This week's ruling mostly denied thedirty.com's motion to dismiss for lack of jurisdiction. As with most Internet jurisdiction rulings, it's not all that interesting. In addition, the court touches on the 47 USC 230 motion to dismiss. The court's entire discussion on that point:
Dirty World, LLC relies on the Communications Decency Act (CDA) of 1996, 47 U.S.C. § 230(c), for the proposition that postings on its web site are privileged.
As stated above, the court cannot consider a possible defense under this Act on the personal jurisdiction issue. Therefore, this branch of defendant’s motion to dismiss will be treated as a motion for summary judgment. The motion is not supported by any affidavits or other materials suitable for summary judgment motions. Plaintiff has orally moved for a period of discovery to respond to the motion. In the opinion of the court, this motion is well-taken and will be granted.
The immunity afforded by the CDA is not absolute and may be forfeited if the site owner invites the posting of illegal materials or makes actionable postings itself. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)(en banc).
Defendant’s counsel properly admitted at oral argument that discovery was necessary to resolve this motion.
This appears to be a Roommates.com-attributable loss, because the court says that the Rooommates.com standard forces the defendant to participate in discovery. However, this loss could reflect thedirty.com's specific "value" proposition. In contrast, with many other websites, plaintiffs will not be able to make a colorable argument that the site invites illegal user submissions.
Posted by Eric at January 22, 2011 11:50 AM | Derivative Liability
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