Sarah Jones, a former NFL cheerleader for the Cincinnatti Bengals is at the ten yard line in her epic showdown against internet gossipmonger, TheDirty.com. In 2009 gossipy sexual rumors were posted about her anonymously on TheDirty.com. The administrators of that website commented on the posts and refused to remove them. So she sued for libel and defamation and intentional infliction of emotional distress. She had one victory after another – first with getting jurisdiction in the forum most convenient to her, Kentucky, despite TheDirty.com being based out of Arizona, and then ultimately a hardfought ruling in her favor and $338k in damages. The court’s ruling was a big deal because it rightfully ruled that TheDirty.com, and sites like it, should not be protected by the Communications Decency Act (“CDA”).
The CDA is the law that protects Twitter and Facebook and other online service providers if somebody tweets or posts something nasty about you. Basically, under the CDA guys like Dorsey and Zuck are immune from liability. BUT, that immunity is not without limitations as we see here. The more a website contributes to the content, the more liable they are for it. In the Sarah Jones case, the court recognizes that some online service providers more actively contribute to content on their sites than others. So, take, say Gawker or Huffington Post or even The New York Times – they are all liable for the content that they themselves create and they do not have immunity under the CDA for that. (The liability they face for comments from the public is drastically reduced, though.) Compare those sites to Etsy or Craigslist, sites that don’t create content, but just provide the space for it to be consumed.
It’s like food versus the plate it’s served on. If you got food poisoning, you’d blame the guy who cooked the bad steak tartar. You wouldn’t blame Waterford for manufacturing the dinnerware it was served on. Proceeding with this simile, though, it would be different if Waterford plates were made for only one thing and that one thing was to serve rotten food. And what about on top of that, the Waterford plate manufacturers had a special ingredient in their etched patterns that infused the already rotten food with extra fecal germs? How about if the guys at Waterford get to approve every meal before it’s served to make sure it’s perfectly rancid and wormy? And if they hide the identity of the chef? And, oh, Waterford won’t let you push the plate away after you’ve already fallen ill. In that case you might also blame the plate company a little, right?
Well, that’s what we have in the Sarah Jones case. TheDirty.com serves one purpose – to provide a platform for individuals to anonymously publish “dirt” about named individuals. They derive ad revenue from this business model. In this instance, they reviewed the original post about Sarah Jones and added their own nasty sexual comments to it, egging on other people to follow up. And then they refused to remove the posts when Sarah Jones pleaded for them to do so. Should they get off scot-free? Hell no.
The federal judge in Kentucky came to the reasonable conclusion that TheDirty.com should not be immune under the CDA. Now it’s being appealed in the Sixth Circuit Court of Appeals. The lower court got the law right. The CDA may be broad and robust, but its privileges do not extend to websites that serve the sole purpose of being a receptacle for — and contributor to — gossip and venom.
Sarah’s appellee response brief was due on December 16, 2013 and I’m dying to see it, but alas, I can’t find it anywhere on the web. Oral argument should be in the next couple months. And if it’s another victory for her, her opponent has already begun lobbying for the US Supreme Court to rule on it. I’m confident enough in Sarah Jones and her case that I hope it does get kicked up because it will make beautiful precedent.
Get to the end zone, girl!!!
