Judge Digs In Against TheDirty.com
The gist of Jones' lawsuit was that TheDirty's users had libeled her by accusing her of promiscuity. But it's well established that the federal Communications Decency Act protects Web sites from liability when users post defamatory comments. That's why sites like Yelp and Ripoff Report regularly prevail in libel lawsuits stemming from users' reviews.
U.S. District Court Judge William Bertelsman, however, has other ideas. He says that Section 230 of the federal Communications Decency Act doesn't immunize gossip sites that solicit potentially defamatory material. Bertelsman, who presides in the Eastern District of Kentucky, also says that TheDirty isn't immune from liability because its operator, Nik Richie, curates and edits posts.
In this case, Richie responded to one of the posts about Jones by commenting, “Why are all high school teachers freaks in the sack?” At the time of the posts, Jones served a teacher. But she resigned after allegations surfaced that she had an affair with a minor -- one of her former students. She reportedly pleaded guilty last year, and is now engaged to the alleged victim.
Leaving aside Jones' personal life, it's worth noting that nearly every other court in the country that has confronted similar lawsuits has dismissed them -- even when site operators add commentary, headlines and edit posts by users. For example, New York's highest court ruled in 2011 that a blog operator was immune from liability for “unquestionably offensive and obnoxious” posts by users, even though the operator promoted those posts.
But despite opinion after opinion to the contrary by other judges, Bertelsman allowed Jones' lawsuit against TheDirty to go to trial. Last month, a jury awarded Jones $338,000 in damages. TheDirty has already filed an appeal with the 6th Circuit Court of Appeals.
Meanwhile, on Monday Bertelsman issued a written decision outlining his reasoning. His ruling includes the remarkable statement that, in his view, the Communications Decency Act “was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content.”
It's fairly unusual to see this type of opinion written after the jury has already returned a verdict and an appeal has been filed. Why did Bertelsman do so? Santa Clara University law professor Eric Goldman says the judge is trying to convince the appellate court to see things his way.
“It's clear that the judge is advocating,” Goldman says. “The judge isn't trying to call balls and strikes. He's trying to persuade the appeals court that there's a 230 exception that applies to this case.”