Apparently, If Your Domain Has 'Dirt' In The Name, Section 230 Safe Harbors Don't Apply (Uh Oh...)

from the hey,-wait-a-second... dept

Back in 2010, we wrote about an attempt to sue the website TheDirty.com for libel... in which the lawyer for the site accidentally sued a different site, called TheDirt.com. This resulted in some hilarity with a bogus default judgment and plenty of confusion. We joked how, given the similarities in the names of those sites to Techdirt, perhaps we should be happy that we weren't sued as well. However, once all the mistakes were realized, the case did shift to actually suing TheDirty.com's owner. TheDirty is (1) not safe for work and (2) not a particularly nice site. It mostly involves user submissions of pictures of women, along with generally mean commentary from the user -- and then maybe a short comment from the site's owner. It is a mean site, and the site's owner and readers seem to embrace that, even if it's exceptionally petty.

The specific lawsuit involved a Bengals cheerleader/school teacher, who wasn't happy with the pictures of her posted to the website... along with the comments made about her (such as suggesting she had slept with the entire football team). As we noted at the time, if this content is user generated -- it's a clear situation where the case should be dismissed over Section 230's safe harbors (which put the liability on the actual content creator, rather than the middlemen third parties). In this case, the actions that might reach the level of defamation clearly came from the user, not the site owner. Previous rulings in other districts have even made it clear that sites that merely pass along content created by someone else -- even if it involves a moderator "choosing" what gets displayed -- do not lose the basic protections. So this case should have been a slam dunk.

Instead... it appears that the judge has gone in the other direction, creating really convoluted arguments to claim that Section 230 does not apply. As Eric Goldman explains, there are serious problems with this ruling:
The court's discussion is short, yet it's surprisingly scattered. Pages 8-10 run through a gamut of gripes about thedirty's practices and statements, but the judge doesn't articulate the relevance of these facts (other than providing evidence of the judge's animus towards thedirty). Because the judge does a poor job connecting the facts to his adopted legal standard, we aren't sure exactly what thedirty did to foreclose the 230 immunity
The ruling, which is attached below, really is that bizarre. The judge twists and turns himself into contortions to try to come up with a reason to say that TheDirty.com is liable for comments made on the site. The simplest explanation, as Eric noted, is that the judge just didn't like the kind of site that TheDirty.com is (and from a quick glance, remains). The key to the judge's ruling is in trying to apply the infamous Roomates.com case. The problem, however, is that the case doesn't fit well. Roommates.com lost not because the site encouraged some actions against the law, but because its menu choices were a part of the content creation, and those menu choices, themselves, directly violated the Fair Housing Act.

It's a huge stretch to go from there to claiming that a site where mean things are celebrated is no longer protected via Section 230's safe harbors. But that's what the judge did.

And, in part, it gets really scary for me, personally, because the judge declares -- multiple times -- that the use of the word "dirt" in a domain name means that you are encouraging defamation:
First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy.
Of course, there's absolutely nothing in Section 230 that suggests that if a judge doesn't like your name -- or falsely assumes that any website with the word "dirt" in the name is up to no good -- he can ignore Section 230's important protections. Like Eric suggested, it would be good if there's an appeal here, because it seems to go against pretty much any other Section 230 ruling. Not liking a site is simply not a reason to ignore those important safe harbors...

And, just to summarize, here are the basics. The site, TheDirty.com posted a user submission, with a one-sentence comment on it. That submission included a cheerleader/teacher, who didn't like her photos being widely available. Somewhere along the way the legal shenanigans began. Remember, the contents of the post itself may be defamatory -- but that, alone, should not make the site liable. It could very well make the original submitter liable, but the cheerleader doesn't seem to want to go that route of actually suing those who did the bad thing. So, instead, the site now faces a lot of liability... because a judge thinks that having "dirt" in your domain name must mean that you're seeking out something bad.

For reasons beyond just the standard defenses of Section 230, this is pretty bizarre and slightly terrifying. I certainly don't encourage the submission of defamatory information. But because I have "dirt" in my domain name, does that mean I should be worried too?


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 6:39pm

    Hit the dirt

    But because I have "dirt" in my domain name, does that mean I should be worried too?

    Yes.

    Plus the MPAA doesn't like you. And Lamar Smith and Patrick Leahy are powerful and mean.

     

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    •  
      identicon
      Anonymous Coward, Jan 27th, 2012 @ 7:07pm

      Re: Hit the dirt

      Considering that someone chubby and magically unanonymous insists consistently that Mike is lying, he's got a case on his hands. A slimy, two-faced case, but unfortunately a case nonetheless.

       

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        inconsistency (profile), Jan 27th, 2012 @ 7:16pm

        Re: Re: Hit the dirt

        I'd say, if the word 'dirt' in a domain name is relevant, you're screwed!

        Since you don't host user generated content, 'no soup...'

        I mean 'no safe harbor for you'

        (Insert Seinfeld SoPA-, I mean Soup-nazi joke)

         

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        •  
          identicon
          monkyyy, Jan 27th, 2012 @ 8:39pm

          Re: Re: Re: Hit the dirt

          these comment are all infringing on the mpaa's copyright

          dont worry about this comment that for copyright, i called my lawyer, payed for the paper work, as well as singed an eula to mention their name,

          although they can still probably get me on defamation if more than 3 people read this according to the eula

           

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    Capitalist Lion Tamer (profile), Jan 27th, 2012 @ 6:51pm

    It's OK, Mike. You dodged a bullet by not capitalizing "dirt."

     

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  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 7:14pm

    That is why we must change to hydroponics immediately

    Having all our food grown or dependent on the growing medium of 'dirt' makes defamers out of each and every one of us.

     

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  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 7:32pm

    "Apparently, If Your Domain Has 'Dirt' In The Name, Section 230 Safe Harbors Don't Apply (Uh Oh...)"

    Well, yeah, first you have to clean it ...

     

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  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 7:40pm

    Someone needs a cranial sphincter extraction tool

    I always thought "dirt" was "truth" that got dug up about someone who would prefer the truth remain buried.

     

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    Overcast (profile), Jan 27th, 2012 @ 7:46pm

    First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy.

    And so that doesn't apply to 'TheDirt.com' how then? Shouldn't that apply to both domain names? lol

    What 'logic'..

    I'm also curious about this then...

    The judge twists and turns himself into contortions to try to come up with a reason to say that TheDirty.com is liable for comments made on the site.

    What if.. instead of on a web site, someone *in court* said - on public record the *exact* same thing as this commenter on the web - would the court itself be liable as well then, for libel?

     

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    Rapnel (profile), Jan 27th, 2012 @ 8:21pm

    I nominate the claiming of a mildly dyslexic defense and change it to the way it was unmeant to be: techtird

    www.techtird.com

    a slippery slope to the bottom and going fast

     

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    Mel (profile), Jan 27th, 2012 @ 8:28pm

    Someone needs to ask this court

    Did
    It
    Really
    Try?

     

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  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 9:16pm

    The judge is probably one of those whose face got photoshoped over a naked body. *sigh*

     

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  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 10:27pm

    Dirt IS a four letter word.

     

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  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 10:42pm

    I don't like the idea of such a site, but I'm even less fond of the idea of such a trial.

     

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  •  
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    Violated (profile), Jan 27th, 2012 @ 10:48pm

    TECH site to throw DIRT on ???

    I believe this decision relates to MegaUpload.

    Both follow DMCA law AFAIK but both have been seen bad (copyright or libel) and their safe harbour status to protect from what users do ignored.

    I don't think you can take anything from the domain name alone even if you register like rapeisfun.com and upload photos of women. That is not approval for unlawful acts when it could also be viewed in more lawful ways.

    Well clearly that site is one making fun of women and insulting them but I doubt many who visit there would take much of what is said seriously. Clearly people are responsible for what they say and not the site owner.

     

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  •  
    identicon
    Anonymous Coward, Jan 27th, 2012 @ 11:20pm

    I think the point many people are (deliberately?) missing is that the site deliberately incites defamation. I doubt that a site that isn't created and maintained for the sole purpose of inciting defamation has anything to worry about in this case. I get the point about the site name, but all that means is that the judge should have stayed focused on the site owner's deliberate incitement of defamation, which should be sufficient to rule against him, instead of mentioning the site name at all.

     

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    •  
      identicon
      Anonymous Coward, Jan 28th, 2012 @ 4:51pm

      Re:

      I think the point many people are (deliberately?) missing
      Nobody is missing anything - except perhaps you.

      the site deliberately incites defamation
      Please show where the CDA states that section 230 immunity provisions are invalid if the side "deliberately incites defamation".

      In fact, please show the text of the CDA that mentions "deliberately inciting defamation" at all.

       

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  •  
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    That Anonymous Coward (profile), Jan 28th, 2012 @ 2:11am

    But the Judge saw TheDirty's 2nd appearance on Dr. Phil and knew that it was all the websites fault. They made her take the picture of herself, they made her run to everyone who would listen to increase the coverage of her being posted there, they made her act like she was innocent and knew nothing about her behavior.

    At the AC above me, an affirmative defense to defamation is truth is it not?
    https://en.wikipedia.org/wiki/Defamation#Defences
    Maybe if they spent more time behaving in the manner they claim they actually do and less doing actions that show them in questionable light and then spend time trying to hide those acts after the fact.

    Under this awesome ruling from the Judge shall we now pursue a case against - http://www.thedirtynikrichie.com/about/

    I don't have to agree with what you say, but I should defend your right to say it. Nik did not make the initial post and merely provides the platform... so this is different than suing the deepest pockets for a payday rather than suing the person responsible?

    Oh noes people said mean things about me in the interwebs my entire world is destroyed! Really? If you think a future employer is using TheDirty as the basis for hiring you, you might be in the wrong business.

    ProTip: No one can put you down without your permission.

    When trying to "defend" your name, turning the post into a giant circus and focusing more attention on it might be the wrong play.

     

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  •  
    identicon
    Anonymous Coward, Jan 28th, 2012 @ 3:47am

    Surprise!

    What is the mechanism being used to make those decisions?

    Copyright, it is a useful tool for censorship of any kind bad and good, if we can't learn to take the bad with the good we don't deserve to be free, there is a price to pay for liberty and democracy and for some that price apparently is not worth paying anymore.

     

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  •  
    identicon
    Anonymous Coward, Jan 28th, 2012 @ 4:49am

    Techdirt: Come for the implied defamation, stay for the tech news.

     

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    •  
      icon
      That Anonymous Coward (profile), Jan 28th, 2012 @ 5:21am

      Re:

      its not defamation if its true...

      example:
      Lamar Smith is a brainless idiot.
      This could be defamation lacking a flatline EEG.
      It is however my opinion of the person, and is protected speech.

      Lamar Smith is out to destroy the internet.
      This is fact, supported by his actions.

      Lamar Smith will not answer the allegations he has done horrible things to ponies.
      This could be defamation indirectly, but a factually accurate statement.

      Lamar Smith did Hollywoods bidding very cheap, does this make him the Walmart of Political Influence?
      Again treading on the line, but factually accurate that he supported the proposal from the MPAA while getting less donations than other Congress members.

      Lamar Smith doesn't use bookmarks, he just liked to bend over pages.
      And now we come to tap dancing on the fine fine line... the statement is not defamation as the connotation in the readers head creates or misses the punchline.

      Lamar Smith is a dirty politician.
      Lacking any factual basis to support the statement, this would be defamation.

      These are all hypothetical examples to illustrate a point, and now I hope you find yourself better informed.

       

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      •  
        identicon
        Anonymous Coward, Jan 28th, 2012 @ 10:35am

        Re: Re:

        My guess is that Lamar Smith is working on the promise of a really lucrative position with the MPAA or similar once he loses his seat. Time will tell if this is right.

         

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  •  
    icon
    f0nZi3 (profile), Jan 28th, 2012 @ 5:22am

    WTF are they teaching in law school?

    Let's face it, judges are failed lawyers. Couldn't make in in the private sector so they run for public office.

    I just wonder what class taught them that if they don't like the letter of the law (or even the spirit of the law), they can and should use their own bias and personal opinion to come to a summary judgement.

    This nation needs an enema.

     

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  •  
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    shawnhcorey (profile), Jan 28th, 2012 @ 6:57am

    "It mostly involves user submissions of pictures of women, along with generally mean commentary from the user -- and then maybe a short comment from the site's owner."

    The site's owner is responsible for his comments and they are not exempt under section 230.

     

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  •  
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    Michael Lockyear (profile), Jan 28th, 2012 @ 7:27am

    Techdirt is screwed now!

    Professionals like lawyers, accountants, doctors, etc often pay a hefty price for bad decisions, negligence, etc. What are the consequences for judges? (Hypothetically of course - I would not dare suggest that an actual judge had made a bad decision - it is probably illegal :) )

     

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  •  
    identicon
    Anonymous Coward, Jan 28th, 2012 @ 8:33am

    and then maybe a short comment from the site's owner.


    Thats where they run in to trouble

     

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  •  
    identicon
    Anonymous Anonymous Coward, Jan 28th, 2012 @ 9:09am

    Diatomaceous Earth

    All Mike needs to do is claim his dirt is diatomaceous earth (aka dirt). This is a clean dirt that is used for filtering aquariums and partly used cooking oil (food safe dirt) amongst other things.

    If Mike's dirt is clean dirt, then what could the problem be?

    /sarc

     

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  •  
    identicon
    Anonymous Coward, Jan 28th, 2012 @ 12:09pm

    You'd better shut down this pirate watering hole right now. Bunch of freetards calling themselves "dirt" have no place on our glorious internetz.

     

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    Tom Landry (profile), Jan 28th, 2012 @ 2:34pm

    just gave the site a cursory glance.....looks like a meathead/jock/fratboy braintrust clearinghouse. "Nik Ritchie" and "The Dirty Army". Sounds like a Zoo Radio bit.

     

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  •  
    identicon
    web hosting geek, Jan 28th, 2012 @ 5:38pm

    So they mean to say that word "Dirt is patented?

     

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  •  
    identicon
    Anonymous Coward, Jan 28th, 2012 @ 7:08pm

    It looks like Sarah is pretty much screwed, she had to quit teaching because of a child rape accusation.
    And she prolly will not get the 11 million from thedirty.

     

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      icon
      That Anonymous Coward (profile), Jan 28th, 2012 @ 10:27pm

      Re:

      Where did you see the child rape accusation?
      It seems like this case is based on 2 posts about her to the dirty.
      https://en.wikipedia.org/wiki/Jones_v._Dirty_World_Entertainment_Recordings_LLC

      She was concerned about how it might possibly affect her job, ignoring the obvious answer of questioning the person who followed the dirty enough to notice her and bring it up.

      The current lawsuit seems to be focused only on getting money from the deep pockets, because the lawyer turned down a chance to get the information on the people who actually posted the original comments.
      Source:http://www.forbes.com/sites/kashmirhill/2010/09/03/bengals-cheerleaders-11-million -victory-in-online-defamation-lawsuit-is-short-lived-as-she-sued-the-wrong-site/2/

      "Deters and Jones hope to find out who sent the photo and information about Jones to Karamian in the first place. “You don’t get to hide behind fake names for slander and libel,” said Deter. Deters says the representative offered to give them that information if they dropped the case, but he declined."

      This is the downside of seeking celebrity, and people should consider the downside... people will always want to take you down a peg. We shouldn't reward them for that.

       

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  •  
    identicon
    bob, Jan 28th, 2012 @ 10:45pm

    ...only goes to show that if masnick would just bow to Big Search, Big Content and Big Media, his pathetic little blog might get some attention.

    It's really a shame that masnick and all of his pathetic little sycophants can't make a difference, so they just baaah baaah baaah to get their voices heard, and then pretend that they make a difference.

    Quit pretending that you represent the voice of 'the internet' or 'the people' and admit that you advocate piracy.

    Sheesh....

     

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    •  
      icon
      That Anonymous Coward (profile), Jan 29th, 2012 @ 1:26am

      Re:

      reading... is fundamental...
      you on the other hand appear to be just mental.

      is this what happens after you've been out all night drinking and instead of drunk dialing you drunk post?

      Or is this a really lame entry trying to win funny?

      -2/10 if your rant can't even be loosely tied to the thread just stop... otherwise its just like your.... A PAYWALL!

       

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    •  
      identicon
      Anonymous Coward, Jan 30th, 2012 @ 7:12am

      Re:

      Wrong buzzwords for the week, paywall bob.

       

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  •  
    identicon
    Free speech, Jan 30th, 2012 @ 11:23am

    Ripp off report

    yes Its a good webside.But in some case the people or person that accuse others could be guilty themselfs for false accusation special when the the person has never been charged for that accusation.Crimanals and scamm artist Can use your webside to keep other from exposing them.

     

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  •  
    identicon
    John Smith, Feb 7th, 2012 @ 10:40am

    Pretty female plaintiff is all we need to overturn this law

    Of course the fact that the plaintiff was an NFL cheerleader had *nothying* to do with it.

     

    reply to this | link to this | view in chronology ]


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