Kentucky Cheerleader's lawsuit punctures website's immunity Judge finds service provider responsible for encouraging content

By Pat Murphy

The Daily Record Newswire

BOSTON -- The Communications Decency Act presents a formidable obstacle for those attempting to sue website operators for objectionable posts by third parties. On Tuesday, a federal judge in Kentucky showed the way for breaching the Act's immunity provision in a defamation and invasion of privacy case brought by a member of the BenGals cheerleading squad.

According to U.S. District Judge William O. Bertelsman's decision in Jones v. Dirty World Entertainment Recordings, a website operator is "responsible" for offensive content within the meaning of the Act when it in some way "specifically encourages" the development of "what is offensive about the content."

The judge reached this conclusion in a lawsuit brought by Sarah Jones, who is a teacher at Dixie Heights High School in Edgewood, Kentucky. Jones also happens to be a member of the BenGals, the cheerleading squad for the Cincinnati Bengals.

Professional cheerleaders naturally attract a lot of attention, both wanted and unwanted. In 2009, Jones was appalled to find that her movements around Cincinnati were being tracked by visitors to the website "the dirty.com."

The website is operated by Hooman Karamian a/k/a Nik Richie through his Arizona business, Dirty World, LLC. Richie's website invites and publishes comments by individuals who visit the site. Richie responds to the posts and publishes his own comments on the subjects under discussion.

As the name suggests, sex is the primary subject of discussion at the dirty.com. Moreover, as Judge Bertelsman observed, the "principal content of 'the dirty.com' website is not only offensive but tortious."

While sex appeal is surely what cheerleaders are all about, Jones didn't like the fact that rumors of the worst kind were posted about her on the dirty.com.

On Oct. 27, 2009, one visitor posted a message stating:

Nik, this is Sara J, Cincinnati Bengal[sic] Cheerleader. She's been spotted around town lately with the infamous [kicker] Shayne Graham. She also has slept with every other Bengal Football player. This girl is a teacher too! You would think with Graham's paycheck he could attract something a little easier on the eyes Nik!

On December 7, 2009, an even more salacious post was made to the dirty.com:

Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals.. Most ppl see Sarah has [sic] a gorgeous cheerleader AND high school teacher. . yes she's also a teacher . . but what most of you don't know is . . Her ex Nate . . cheated on her with over 50 girls in 4 yrs. . in that time he tested positive for Chlamydia Infection and Gonorrhea . . so im sure Sarah also has both . . what's worse is he brags about doing sarah in the gym . . football field . . her class room at the school where she teaches at DIXIE Heights.

In response to this particular post, Richie posted: "Why are all high school teachers freaks in the sack? - nik."

Concerned for her job, Jones repeatedly e-mailed the site and asked that the posts be removed, but her requests were ignored.

So she sued Richie and Dirty World in the U.S. District Court for the Eastern District of Kentucky, seeking damages for defamation and invasion of privacy.

The case landed in the lap of Judge Bertelsman. According to the judge, Richie and his company have admitted that facially defamatory and privacy-violating posts were made to their website concerning Sarah Jones.

However, the defendants claimed immunity under the Communications Decency Act.

Section 230 of the CDA generally immunizes providers of interactive computer services against liability arising from content created by third parties.

However, there is one catch: The grant of immunity only applies if the service provider is not also an "information content provider," which is defined as someone who is "responsible, in whole or in part, for the creation or development of" the objectionable content.

The Act's immunity provision has proved to be a tough nut to crack for many a personal injury attorney.

Judge Bertelsman in his decision Tuesday provided a glimmer of hope for plaintiffs faced with a website operator's assertion that it is not an "information content provider" and, therefore, entitled to absolute immunity under the CDA.

Finding no controlling 6th Circuit authority, Bertelsman borrowed from the 10th Circuit's decision in FTC v. Accusearch (570 F.3d 1187) to find the controlling test for determining immunity under the CDA.

In Accusearch, the 10th Circuit said that a "service provider is 'responsible' for the development of offensive content only if it in some way specifically encourages the development of what is offensive about the content."

With Bertelsman's adoption of this test, the assertion of absolute immunity by Richie and Dirty World was in deep trouble.

The judge held that "the defendants here, through the activities of defendant Richie, 'specifically encourage development of what is offensive about the content' of 'the dirty.com' website."

In explaining his decision that Richie and Dirty were not immune under the CDA, the judge first underscored the obvious point that "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."

The judge also found problematic for Richie and his claim of immunity the manner by which he manages his site. As explained by the judge, in Richie's capacity as editor of the site, he selects a small percentage of comments to be posted and adds a tagline. While Richie reviews a post, he does not verify its accuracy. Moreover, Richie is the one to decide whether a particular post should be removed when someone objects.

"Most significantly, Richie adds his own comments to many postings," the judge said. "In these comments, he refers to 'the fans of the site' as 'the Dirty Army.' He also adds his own opinions as to what he thinks of postings."

In deeming Richie a "responsible" service provider under CDA, Bertelsman concluded with this parting shot:

"One could hardly be more encouraging of the posting of such content than by saying to one's fans (known not coincidentally as 'the Dirty Army'): 'I love how the Dirty Army has war mentality.'"

Published: Fri, Jan 13, 2012

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