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
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?