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Lawsuit against TheDirty.com could set worrying precedent according to technology lawyers

May 5, 2014

An ex-cheerleader for the Cincinnati Bengals is suing TheDirty.com for its defamatory statements that appeared about her online—and winning. Sarah Jones filed a federal defamation lawsuit against the gossip website, and was already awarded $338,000 last summer in a U.S. District Court, according to this article in USA Today online.  But what’s tricky about this suit is its potential to overturn commonly held interpretations of current law and set new precedent that has tech companies as large as Google and Amazon potentially worrying about whether they should start retaining first amendment or technology lawyers.

A story about Jones appeared on TheDirty.com about a past criminal charge, and in one of the comments allowed to be published on the web page, an individual accused Jones of having “had sex with every Bengals player on the team and likely had gonorrhea and chlamydia.” Jones sued, and won. But why? Technology lawyers point to the U.S. District Judge William Bertelsman’s ruling that considered the website without liability protection according to the Communications and Decency Act (CDA) of 1996. The CDA ostensibly provides “legal protections to operators of websites and other types of interactive computer services…granting broad immunity from certain types of legal liability stemming from the content created by others,” like commenters. Apparently, operators are guaranteed not to lose immunity even if they revise the content either for accuracy (or civility) as long as the edits don’t significantly change the meaning of the original content.

So what did Bertelsman find different about TheDirty.com that exempted it from this immunity? It was apparently the fact that TheDirty.com operator Nik Richie “invites other people to post ‘dirt,’” thus making him responsible for the content posted by others. So unprecedented was this verdict that some of the largest tech companies in the U.S. filed briefs asking appellate courts to overturn the decision. And if it isn’t reversed, technology lawyers say that this case could end up in the Supreme Court, which hasn’t yet considered the question of immunity under this particular section of the CDA.

One of the technology lawyers representing TheDirty.com doesn’t think it will happen: the appellate court “should rule in our favor and completely reject the trial judge.” But others aren’t so sure. The pace at which the internet world of publishers is exploding. Nearly everyone has left comments on websites, managed a Facebook page, published blogs, participated in online forums or hosted discussions on webpages, and this is a case in which they could be considered stakeholders, too.

“The decision at the trial court was counter to all the others that came before it…It’s inconsistent with virtually all of the other trial court and appellate courts in the nation,” said one first amendment lawyer commenting on the case. Companies like eBay, Facebook, and Microsoft could have something to worry about if the decision is upheld in the appeal, and even more so if the case goes to the Supreme Court—the legal precedent could “cripple the free expression and commerce that has flourished on the internet.”

 

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