Information Privacy S2013 Fay Tan

ITS A DIRTY, DIRTY WORLD: GRANTING IMMUNITY TO PUBLISHERS OF TORTIOUS CONTENT UNDER THE COMMUNICATIONS DECENCY ACT I cant recall exactly how or when I came upon the addictively awful on-line abomination that is TheDirty.com. It may have been a random link on some celebrity gossip website. It may have been a Google search gone awry (or exactly as intendedI cant remember?). But all I know is that for months following my discovery, TheDirty was like a daily trainwreck from which I could not turn away. For those unaware (or more morally sound than yours truly), TheDirty1 is a website to which users submit photosmany unflattering or otherwise embarrassingof other individuals, usually accompanied by derogatory statements regarding the individuals looks, deficiencies in moral character, or scandalous behavior. The subjects of the posts are most often private

citizens, although some posts are written about politicians, sports stars, or other celebrities. The websites founder, Hooman Karamian (a.k.a. Nik Richie), chooses which submissions to post on the blog and then adds his own comment to each posted submission. Richies comment is usually one sentence in which he indicates his agreement or disagreement with the submitters assessment of the subject of the post, or in which he makes a general statementusually criticalabout a group to which the subject belongs (for example: a specific race, occupation, or other demographic). A blurb at the bottom of each webpage touts the site as [t]he words first ever reality blogger. The blurb goes on to say that TheDirty is all about gossip and satire. [ ]The content that is published contains rumors, speculation, assumptions, opinions, and factual information. [ ]Postings may contain erroneous or inaccurate information. The owner of this site does not ensure the accuracy of any content presented on TheDirty.com.2
1 2

www.thedirty.com Id.

As the website disclaimer recognizes, some of the content submitted to TheDirty may be inaccurate or factually erroneous. Richie has admitted in at least one case that statements made by a submitter, and subsequently published on the website, were facially defamatory and violated the subjects right of privacy.3 There is no question that in such situations, the subject of the post has the option of pursuing legal action against the submitter4, provided his or her identity is known (TheDirty does not require divulgence of a users name or contact information when submitting a post5). However, the culpability of an on-line publisher of posts submitted by third parties is more unclear. Federal legislation specifically exempts such parties from liability, even when the original poster may have committed tortious actions against the potential plaintiff.6 This paper first offers a general overview of the common law torts of invasion of privacy and the statutory protection afforded to websites like TheDirty. A summary and analysis of the case law applicable to TheDirtyincluding litigation involving TheDirty itselffollows. The paper will then conclude with a discussion of the reasons we as a society may want to reconsider the statutory framework permitting websites like TheDirty to operate. What kind of policies do we want to adopt when it comes to what could be characterized as on-line harassment, and how much responsibility should we assign to those who may not actually create the offensive or defamatory material, but encourage its creation and aid in its dissemination?

THE LAW The torts of defamation and invasion of privacy, while related and simultaneously present in some cases, are not synonymous. Defamation of an average, ordinary citizen (the subject of
3 4

Jones v. Dirty World Entertainment Recordings, LLC, 840 F. Supp. 2d 1008, 1009 (E.D. Ky. 2012). S.C. v. Dirty World, LLC, 2012 WL 3335284, *5 (W.D. Mo. March 12, 2012), citing Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997). 5 http://thedirty.com/submit-post/ 6 http://www.dmlp.org/legal-guide/immunity-online-publishers-under-communications-decency-act 2

most posts on TheDirty) involves the publicationregardless of motive or intentionof a categorically false assertion which both concerns an individual and tends to cause harm to that individuals reputation.7 In the United States, truth is an absolute defense to a defamation suit, but reproduction of anothers defamatory statement is not; in general, a party repeating a statement known to be defamatory may be held equally liable as the original speaker.8 Four torts of invasion of privacy are generally recognized in the United States. They are: 1) Intrusion upon seclusion; 2) Appropriation of name or likeness; 3) Casting in a false light; and 4) Public disclosure of private facts.9 An invasion of privacy claim can coexist with a claim for defamation. For example, if A publishes on his blog that B is carrying on numerous affairs behind her husbands back, and this statement is verifiably untrue, B may choose to bring a defamation suit against A for making false, libelous statements about her, and B may also claim that her privacy was invaded when A cast her in a false light as an adulteress. If, on the other hand, As statement was true, B could nevertheless bring suit against A for public disclosure of private facts, assuming she had not previously disclosed the information herself and the fact of her affairs was not of legitimate public interest. As we will see, claims of defamation and invasion of privacy are staples of the numerous court cases that have been brought against Dirty World, LLC, the operating entity of TheDirty.com. The preceding summary set forth the common law framework potentially applicable to original posters of false or embarrassing private information. Additionally, publishers of

anothers defamatory statementssuch as newspapers and other television stationsmay also

7 8

https://www.eff.org/issues/bloggers/legal/liability/defamation Ibid. 9 http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts22.htm 3

be held liable for damages suffered by the plaintiff. Historically, however, distributorssuch as bookstores and newsstandshave not been held liable for disseminating defamatory statements, due to the fact that they were deemed to lack sufficient control over the materials they offer or sell.10 With the advent of on-line forums, courts were asked to decide if a provider of an on-line platform could be held liable, as a publisher, for tortious material posted to its website. In Stratton Oakmont, Inc. v. Prodigy Services Co.11, a New York state trial court determined that Prodigy, a computer network operator, was indeed a publisher of content, although it merely permitted users to post comments on its server and did not otherwise add to or alter the content of the comments. The court found that Prodigys policy of reviewing comments and deleting those that it deemed inappropriate were effectively an exercise of editorial control over the material posted on the website, resulting in greater liability for the comments that were permitted to remain displayed.12 The decision in Stratton was somewhat perverse in that it punished the operator for attempting to remove malicious content, although no liability would have been found had the operator permitted all comments, even tortious ones, to stand. Congress swiftly addressed this issue in the Communications Decency Act of 1996 (CDA).13 The purpose of the CDA was to regulate and minimize the on-line display of obscene content to minors.14 Originally targeting indecent material as well, the indecency portion of the law was struck down by the U.S. Supreme Court as unconstitutionally overbroad in Reno v. American Civil Liberties Union.15

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http://www.dmlp.org/legal-guide/immunity-online-publishers-under-communications-decency-act 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). 12 Ibid. at *4. 13 47 U.S.C.A. 230, 560-561 (1996). 14 http://en.wikipedia.org/wiki/Communications_Decency_Act 15 521 U.S. 844 (1997). 4

Prior to the CDAs passage into law, the U.S. House of Representatives added 230 to the bill, granting immunity to interactive service providers and publishers of content which might otherwise violate the CDA or tort law. In relevant part, 230 states that "[n]o 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. According to the statute, interactive computer service refers to any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, and information content provider is defined as any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. Notably, the law does not exempt from liability violators of criminal statutes, intellectual property laws, state laws not contradictory to the CDA, and the Electronic Communications Privacy Act of 1986. There is little doubt that an original poster is an information content provider as contemplated by the statute, and a website merely hosting a forum for third-party comments is an interactive computer service. However, the law seems to have left open the possibility that an interactive computer service could simultaneously be an information content provider if it, for example, engaged in posting its own comments on the forum or if it altered or added to the content submitted by users. The following section of this paper reviews the case law debating the possibility of an interactive computer services liability for tortious speech, despite the immunity seemingly granted by the CDA.

THE COURTS 230 of the CDA has been the subject of much litigation.16 This is not surprising, considering that in cases where an original posters identity may not be known, compensation by the publisher of tortious statements may be the plaintiffs only recourse. The courts have generally interpreted 230 broadly to prevent liability in all but the most narrow of cases. An early case challenging CDA-granted immunity was Zeran v. AOL.17 In Zeran, the Fourth Circuit held that AOL could not be held liable for defamatory statements posted by an unidentified third party, even after AOL had been notified by the plaintiff that the postings were defamatory and AOL failed to remove the postings promptly. Citing Congresss purpose in passing 230, the court found that notice of the defamatory nature of the posters statements was not sufficient to attribute the statements to the interactive computer service as its own adopted speech. Zeran set the standard very broadly in favor of website operators seeking immunity for publication of third-party statements. The first privacy tort case18 against Dirty World was brought by a Missouri woman whose ex-boyfriend had submitted photographs of the woman to TheDirty.com, along with some unsavory commentary suggesting she was sexually promiscuous. The submission was posted and accompanied by a comment made by Richie, who ridiculed the plaintiffs physical appearance and included general advice on how promiscuous women should be treated. The court found that Richies statements neither publicly disclosed private facts nor cast the plaintiff in a false light, since the alleged facts were simply Richies stated opinions. Because it

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http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act Id. 18 Dyer v. Dirty World, LLC, 2011 WL 2173900 (D. Ariz. June 2, 2011). 6

dismissed the case on those grounds, the court felt it unnecessar y to address the defendants claims of immunity under the CDA. Dirty Worlds next case involved a Tennessee television reporter who was the subject of a negative posting on TheDirty.com.19 The only claim then at issue was plaintiffs assertion that defendants had violated her right to publicity. In finding for Dirty World, the court noted that Tennessee had codified the common law right of publicity in 1984, and the statute required that plaintiff prove defendants had used her name or likeness in advertising for their website. Since plaintiff was unable to do so, her claim was dismissed. For purposes of argument, the court assumed that a claim arising from a state statutory right of publicity was exempted from CDA immunity as an intellectual property law (a theory considered and rejected by the Ninth Circuit in 200720 but adopted by a New Hampshire federal court in 200821). The first case to seriously call into question Dirty Worlds immunity as an interactive computer service was Jones v. Dirty World Entertainment Recordings, LLC.22 Jones, a

Cincinnati Bengals cheerleader and teacher, was the subject of multiple posts displayed on TheDirty.com. Citing effects on her personal and professional life, Jones requested that the posts be removed; defendants refused. Jones sued Dirty World for defamation and invasion of her privacy; defendants claimed immunity under 230. The court examined existing case law from the Ninth and Tenth Circuits23 and concluded that immunity granted by the CDA has its limitations; specifically, an interactive computer service will be deemed an information content

19 20

Gauck v. Karamian, 2011805 F. Supp. 2d 495 (W.D. Tenn. 2011). Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007). 21 Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288 (D. N.H. 2008). 22 Id. 23 Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) and Federal Trade Commission v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009). 7

providerand thus liable for tortious speechif it in some way specifically encourages the development of what is offensive about the content.24 In finding that the defendants encouraged the tortious speech, the court pointed out that the purpose of the website was to collect and display salacious and often defamatory material, without regard to the truth of the statements contained therein. The court noted that the name TheDirty indicated the defendants desire to receive only dirt about subjects of their posts, that Richie added his own comments to submissions prior to posting them (thereby potentially adopting the tortious speech as his own), that defendants refused to remove material after they knew it to contain tortious speech, and that Richie sometimes addressed the websites fans directly, praising them for their war mentality against individuals like Jones. These facts, taken together, indicated to the court that the defendants were responsible, in whole or in part, for the creation or development of information provided through their interactive computer service. The narrow interpretation of CDA immunity set forth in Jones has been rejected by at least one court. In S.C. v. Dirty World, LLC25, a Missouri federal court found Jones to be factually distinguishable from the case at hand. In S.C., Richies comment to the submitted post was strictly an assessment of the plaintiffs attractiveness and, unlike in Jones, was not related to, nor could it have been construed as signaling approval of, the original posters comments. The court also noted that defendants removed the post about plaintiff when asked, which further indicated a lack of intention to adopt the tortious speech as their own. The court also distanced itself from the Jones courts belief that the name of the website could be used as evidence that it was responsible for creation of the offensive content posted. Lastly, the court iterated its belief

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Jones, 840 F. Supp. 2d at 1011. Id. 8

that even if Dirty World had impliedly solicited tortious speech from its users, that was not enough to strip defendants of CDA immunity. The court in S.C. made clear that its ruling was limited to the specific facts of that particular case, stating [t]he Court disagrees with the Defendants' apparent belief that they are immune for any and all postings on their Website.26 The tension between the rulings in Jones and S.C. are recognized in a memorandum opinion published in the recent case of Hare v. Richie.27 In Hare, plaintiff, the subject of several posts on TheDirty.com, sued defendants for, among other claims, defamation and invasion of privacy. Defendants filed a motion to dismiss the case, claiming CDA immunity. The court first analyzed the plaintiffs claims that defendants statements could be tortious in nature. Finding that it was a possibility, the court went on to reserve judgment on the question of CDA immunity until discovery was completed. Plaintiff therefore was awarded a small victory in that the suit was allowed to proceed, but the court declined to engage in a comprehensive analysis of the conflicting decisions regarding TheDirtys culpability under the CDA as a developer of offensive content, leaving the question open instead. Nevertheless, at least some web commentators have interpreted the rulings in Jones and Hare to be an indication of the erosion of CDA immunity.28 One writer notes the divergence of Jones from prevailing CDA case law and expresses worry that if the ruling is upheld at the appellate level, it could lead to forum-shopping in the future, with plaintiffs flocking to the more

26 27

Ibid. at *5. 2012 WL 3773116 (D. Md. August 29, 2012). 28 http://www.hklaw.com/publications/Two-Federal-Cases-Hold-Website-Responsible-for-Postings-on-thedirtycom01-29-2013/ 9

narrowly construed immunity standard--specifically encouragedadopted by the Sixth Circuit.29

THE FUTURE The current state of the case law regarding CDA immunity fails to provide much guidance to either website operators or users. Sites attempting to provide suggestions to website operators about their legal obligations stress caution in proceeding with the posting of potentially tortious content.30 As of today, there is no clear indication of where the law is headed.

However, my personal belief is that Jones is, and will remain, an anomaly, and courts will continue to interpret CDA immunity broadly to protect publication of third-party comments by on-line providers. The American values of free speech, a free market, and individual control are deeply embedded in both society and law. The Findings and Policy considerations accompanying the substantive text of 230 make clear what Congress intended: The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. It is the policy of the United States to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; [and]

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http://www.sociallyawareblog.com/2012/04/26/a-dirty-job-thedirty-com-cases-show-the-limits-of-cda-section230/ 30 https://www.eff.org/issues/bloggers/legal/liability/230; http://www.dmlp.org/legal-guide/immunity-onlinepublishers-under-communications-decency-act 10

 to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services[.]31 While I agree that on-line forums should be permitted to provide a platform for the comments of third-party userswithout fear of liability for user-generated tortious contentI believe increases32 in cyber-bullying, cyber-stalking, and on-line harassment justify a call for an update to the immunity provision of the CDA, and the safe haven directive of the European Union33 may be a good model. The EUs version limits immunity to neutral and passive actorspresumably excluding operators like Richie, who add their own commentary to thirdparty posts and otherwise add fuel to the fire by encouraging submission of offensive content. The safe haven also requires that operators remove illegal content as soon as they are made aware of it, which contradicts the Fourth Circuits interpretation of 230 in Zeran. Interactive computer services simply should not be able to claim immunity from suit when they have contributed to the offensive contenteither directly by adding their own commentary or indirectly by encouraging others to submit content that is highly likely to be defamatory or disseminated in violation of an individuals privacy rights. Permitting tortious content to remain displayed after its illegality is made known to the services provider could result in additional harms being suffered by the plaintiff, potentially to the detriment of other culpable parties (such as the original poster), but at no cost or harm to a provider granted immunity from suit by the CDA. In fact, while a plaintiffs reputation continues to deteriorate, a website like TheDirty may actually benefit from increased traffic to the website by others wishing to view the defamatory or violative post. Make no mistake; while providing a safe and open platform for
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Id. http://www.bullyingstatistics.org/content/cyber-bullying-statistics.html 33 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML 11

users to rant and make observations about others, TheDirty is also a for-profit enterprise.34 Revenue is generated by advertising and merchandise salesin late 2011, the cost of prime advertising real estate on the website was $10,000 per monthand founder Richie makes regular club appearance in major metropolitan areas, earning thousands of dollars per event. Its not a stretch to say that TheDirty profits from everyday scandal, whether true or not. If Richie and Dirty World financially benefit from outrageously defamatory statements published on their website, is it blatantly unfair to assign them some responsibility in ensuring the content they are actively fostering and encouraging the development of is held to some standard? With that said, I understand that the responsibility of avoiding an involuntary appearance on websites like TheDirty should also fall on internet users. The mere existence of a website like TheDirty should give pause to the millions of people sharing, posting, and exchanging personal information each month. As I cited in my blog post from earlier this semester, as of April 2013,

Facebook has 1.06 billion monthly active users, YouTube has 1 billion registered users, and Gmail has 425 million accounts.35 Each person granted access to private information on-line, whether through publicly accessible profiles or sharing by other users, is a potential contributor to TheDirty.com, and each individual with any degree of social media presence is a potential subject. Consumers need to take steps to safeguard their information. Period. My hope is that government regulation will someday catch up to changing needs for privacy protection. The continued existence of websites like TheDirty have shown me that the free market may be more forgiving of bad behavior than we give it credit for (or that we give it more credit than it deserves). Until appropriate regulations are passed, and as long as interactive computer services
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http://www.forbes.com/sites/kashmirhill/2010/11/11/the-dirty-business-how-gossipmonger-nik-richie-of-thedirtycom-stays-afloat/ 35 http://expandedramblings.com/index.php/resource-how-many-people-use-the-top-social-media/ 12

are permitted to freely distribute information known to be false, defamatory, or invasive of personal privacy under a blanket of immunity, it will be up to consumers to do all they can to ensure that their personal information does not end up in the wrong hands. Unfortunately, as someone who has seen enough of TheDirty to be wary of strangers, friends, and friends alike, all I can say is, Good luck with that!

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