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January 10, 2012
TheDirty Denied 47 USC 230 Immunity--Jones v. Dirty World
By Eric Goldman
Jones v. Dirty World Entertainment Recordings, LLC, 2012 WL 70426 (E.D. Ky. Jan. 10, 2012). Prior blog post on this case.
A Kentucky federal judge rejected 47 USC 230 immunity for thedirty.com for third-party content. It's entirely clear that if the jury finds the user posts defamatory or a privacy invasion, this judge will let thedirty be liable for third-party content. That's exactly what 47 USC 230 was designed to prevent, making this a troubling and probably lawless ruling. Critics of 47 USC 230 will likely rejoice about this opinion because it represents the biggest incursion to 47 USC 230's immunity we've seen to date. Yet, for that reason, I wonder if this ruling will survive an appeal, which thedirty has already promised.
You may recall thedirty encourages users to submit third party gossip, typically about women, along with a photo of the gossip subject. Nik, thedirty's operator, evaluates the submissions, picks some of them for publication, and then typically adds his own short snarky comment about the user post. In this case, Nik published two user submissions about Sarah Jones, a Cincinnati Bengals cheerleader and a school teacher. The user posts intimated, among other derogatory remarks, that Jones had sex with the entire Bengals football team, had sexually transmitted diseases because her boyfriend cheated on her, and had sex with her boyfriend in public places, including her school classroom. In response to the second post, Nik's snarky comment was "Why are all high school teachers freaks in the sack? – nik."
[Just to state the obvious, this isn't my kind of website. I think the site is targeted at a different demographic than middle-aged suburban dads of two. And if the statements are untrue, then they don't belong online. But unlike this judge, my views about 47 USC 230 don't turn on whether or not I think the website is laudatory or has good editorial practices.]
The court's discussion is short, yet it's surprisingly scattered. Pages 8-10 run through a gamut of gripes about thedirty's practices and statements, but the judge doesn't articulate the relevance of these facts (other than providing evidence of the judge's animus towards thedirty). Because the judge does a poor job connecting the facts to his adopted legal standard, we aren't sure exactly what thedirty did to foreclose the 230 immunity. However, and slightly helpfully, the court summarizes its conclusion at the end:
This Court holds by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site. One could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): “I love how the Dirty Army has war mentality.”
This goofy legal standard ("specifically encouraged development of what is offensive about the content of the site") comes from the 10th Circuit FTC v. Accusearch opinion. Although a few other courts have cited Accusearch favorably, I believe this is the first time a court has favorably cited this specific standard for evaluating 230's immunity. (The language was also quoted in the Backpage case, although the defendant won that case). By adopting a legal standard that no other court has found useful, this judge was clearly reaching.
I personally wouldn't shed a tear if thedirty was wiped off the face of the Internet. As I said, it's not my kind of site. But Congress told judges that they aren't allowed to wipe UGC sites off the Internet just because they don't like them. For that reason, this is a terrible ruling that needs to be fixed on appeal. In the interim, I'm sure the plaintiff's bar will swarm all over this opinion, just like they have with other 230 exceptions. Yay, something we can look forward to.
Other blog coverage of thedirty cases:
* TheDirty Defeats Publicity Rights Claims--Gauck v. Karamian
* TheDirty Defeats Privacy Invasion Lawsuit--Dyer v. Dirty World
* thedirty.com's 47 USC 230 Defense Rejected on Motion to Dismiss--Jones v. Dirty World Entertainment
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