• by Wendy Davis , Staff Writer @wendyndavis, January 2, 2014

Last year, former Cincinnati Bengals cheerleader Sarah Jones shocked many industry observers when she won a defamation lawsuit against gossip site TheDirty.com.

Jones argued that the site libeled her when one of its users authored a post accusing Jones of promiscuity. A jury agreed with Jones and awarded her $338,000.

The fact that Jones won was surprising for many reasons, not least of which was that Jones wasn't the most sympathetic figure. She resigned from a teaching position after she was accused of having an affair with one of her former students. Jones reportedly pleaded guilty in 2012 to sexual misconduct, based on the allegation that she had sex with a student, and is now engaged to the alleged victim.

But that's not the only reason why the verdict stunned observers. The other, probably more significant one is that the federal Communications Decency Act provides that Web sites are immune from liability when users post libelous comments. Court after court has interpreted that law to protect publishers from defamation lawsuits based on users' comments.

U.S. District Court Judge William Bertelsman, who presides in the Eastern District of Kentucky, ruled otherwise. He said that the Communications Decency Act doesn't immunize gossip sites, because they solicit potentially defamatory material. He also said the TheDirty isn't protected by the Communications Decency Act because the site's 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?”

TheDirty.com recently asked the 6th Circuit Court of Appeals to reverse the libel verdict. The appeal has drawn the interest of numerous other Web companies -- not to mention digital advocacy groups -- who say that Bertelsman got the law wrong.

Jones has now filed papers opposing TheDirty.com's request. She says the appellate court should uphold the jury's verdict, on the theory that the Communications Decency Act doesn't protect the gossip site.

Specifically, she argues that Richie created TheDirty.com “to collect dirt or gossip about real people,” and that he “reviewed all submissions prior to posting and made decisions about which posts would be displayed, and edited the posts and added comments to them.”

Jones adds in her court papers: “This is not Facebook or other platform that passively acquiesces to the content provided by users. Richie encouraged users of his site to post defamatory material and ratified that content and encouraged additional content through his comments.”

Jones isn't the first one to argue that Web site operators should lose their immunity when they encourage offensive posts, or edit them in a way that spurs other users to comment. To date, however, courts have rejected attempts to hold site operators liable for users' defamatory comments -- even when the operators appear to prod users into posting the material.

In one notable case, New York's highest court dismissed a defamation lawsuit by Ardor Realty Corp. head Christakis Shiamili, who sued over disparaging comments that appeared on a blog run by an employee of a rival realty company.

The comments in that case included statements alleging that Shiamili "screws his agents over on commission," that his company "can't retain anyone," and that he makes anti-Semitic and racist remarks. One comment referred to an agent as "his token Jew."

Shiamili alleged that the blog administrator made that comment a "stand-alone post" and gave it the headline "Ardor Realty and Those People," and the sub-head, "and now it's time for your weekly dose of hate, brought to you unedited, once again, by 'Ardor Realty Sucks'. and for the record, we are so. not. afraid," according to the court's opinion.

While the New York judges said the statements were "unquestionably offensive and obnoxious," they also ruled that the site operator was immunized by the Communications Decency Act. The judges noted in the ruling that site operators don't lose that immunity by performing traditional editorial tasks, including promoting posts.