Ben Gal Verdict Vacated

In what for legal circles is lightning fast time, the United States Sixth Circuit Court of Appeals today vacated the jury verdict in Sarah Jones’ case against thedirty.com. I filed a friend of the court brief in the case on Amazon, Buzzfeed and CNN and other interested parties.

As you may recall, Ms. Jones is a former Ben Gal cheerleader who sued thedirty for comments posted by third party commenters. The comments were vulgar, lewd and likely defamatory. But rather than determining the identity of the people who actually posted the comments, Ms. Jones chose to sue thedirty. Thedirty.com is a Web site that encourages readers to submit “dirt” on people. It’s the site that broke the story on Anthony Weiner continuing to post sexually explicit messages while running for mayor AFTER he’s been forced out of Congress for the same conduct.

And that decision made sense on some levels. First, it saved Ms. Jones the burden of figuring out who the posters were. Second, presumably, the Web site has a deeper pocket than the average poster. And third, thedirty.com and its owner/operator Nik Richie are not the most sympathetic defendants. Given Ms. Jones recovered a verdict that included a $300,000 punitive damage award, her instincts were kind of validated.

But the case all along had a nagging a problem – the law. The federal Communications Decency Act expressly prohibits holding the Web site operator liable as the publisher of content supplied by third parties. Ms. Jones was able to convince the trial court that thedirty lost the CDA protection because it “encouraged” the submission of the offensive content and because it “ratified” the offensive content by adding its own comments after the postings.

But much like an NFL official can reverse a ruling on the field, the Sixth Circuit threw out the verdict and ordered the trial court to award a judgment in favor of thedirty.

It found that the Web site operator must make a “material contribution” to the offensive content to be held liable for it. An example of a “material contribution” would be if the Web site required certain information to be included in the submitted material. An online housing site in California called Roommates.com for example, required users to list preferences for roommates, including whether they preferred a certain sexual orientation. In that case, because the site required that information, it was not immune from a discrimination suit. By contrast, Craigslist, which allows users to state discriminatory preferences, but doesn’t require it, retained its CDA immunity.

Here thedirty did not require users to provide any particular information. And so it didn’t lose its CDA protection despite encouraging users to submit “dirt.”

And thedirty didn’t sacrifice its protection under the CDA by its including its own commentary. It’s important to note – that commentary in itself wasn’t actionable. But Ms. Jones argued that when read in context, the commentary “adopted” the offensive content in a way that made thedirty the “developer” of the third party material. But the Sixth Circuit found that an “adoption” theory did as much to undermine the CDA as did the “encouragement” theory. They are two sides of the same coin.

The Sixth Circuit got this one right. The holding in the Sarah Jones trial, if adopted, would have seriously undermined the broad immunity provided by the CDA. All in all, this is indeed a touchdown for proponents of open and robust interaction on the Web!