It only took two posts (complete with pictures) to send Sarah Jones’s reputation into free fall. By an anonymous contributor, Ms Jones was accused of sexual misconduct, both with players on the Cincinnati Bengals NFL team and at her school. The plaintiff sued the hosting site — The Dirty — and it’s owner/curator Nik Richie.
We’ve been thinking about efforts to protect online reputations, precariously sandwiched between free speech and defamation. This is another story that caught our eye. In conflict with the 1996 Communications Decency Act, high school teacher and part-time NFL cheerleader sued a hosting site for online defamation. So far, she’s winning.
Section 230 of the Communications Decency Act protects websites from liability for third-party content: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Back in 1996, it was message board sites, now this law covers sites from Facebook to TheDirty.com.
Under the law, protected actions include: passively hosting third-party content, exercising traditional editorial functions over submitted content, pre-screening objectionable content, and encouragement of third-party submissions. The avenues for alleged victims of online defamation to seek redress have been exceptionally slim. Until now.
Despite the 1996 law protecting sites like these, however distasteful they may be, U.S. District Judge William Bertelsman ruled that TheDirty.com and Nik Richie were not shielded from liability. Why? Because “the name of the site encourages the posting only of dirt,” material that is likely defamatory and an invasion of privacy. Moreover, since all posts start by directly addressing Nik, and he will frequently post comments in response, the Judge ruled that Richie actively encourages the “development of what is offensive about the content of TheDirty.com website.”
This departure from other rulings demonstrates again how fast the law must adapt to the first amendment challenges presented by the Internet. An appeal is currently pending in the 6th Circuit Court of Appeals.
Commenting on the case, Santa Clara University law professor Eric Goldman suggested that if the conservative 6th Circuit considers the contents of TheDirty.com in its decision-making, it is likely to uphold Bertelsman’s ruling. However, “if they view their job being simply the executioners of Congress’ instructions, then it’s clear the case has to be reversed,” he said.
If this case continues through the court system, a first amendment challenge seems increasingly likely. And this leads back to the questions we started with. One: How exactly do we balance the constitutionally protected right to speech, with the harm that can be inflicted from defamation? And two: For how long will private companies act as arbiters of what speech is valid and appropriate under the first amendment and what speech is not?
- As Yelp Rises, Free Speech and Business Reputations Can Conflict (legallyeasy.rocketlawyer.com)
- The law protects online ‘dirt,’ but she’s fighting it (news.cincinnati.com)
- Don’t Shoot The Messenger Over User Content, Courts Confirm (paidcontent.org)