Lessons for Hyperlocal Publishers in Cheerleader’s Defamation Suit

Good editing is a virtue, but adding your own two cents to defamatory statements posted by a user will only bring trouble. The gossip site TheDirty.com learned this lesson the hard way on January 10th, when a Federal Judge in Kentucky refused to throw out a defamation claim brought by a Cincinnati Bengals cheerleader against the site. According to court documents, the site had two objectionable postings regarding the cheerleader’s relationships with others.

Last month, this column reported how the Digital Millennium Copyright Act can provide hyperlocal publishers with certain immunity from copyright claims for content posted by users. Federal law also offers limited immunity to publishers against claims for libel and defamation for content posted by users. Known as the Communications Decency Act,  the law declares that no provider of an interactive service should be treated as a publisher of information provided by another information content provider. However, the immunity only goes so far: the immunity is lost if the editor or publishers is responsible, in whole or part, for the offending content.

TheDirty.com proclaims itself the “world’s first ever reality blogger,” which is “all about gossip and satire.” According to court documents, Sarah Jones, a Cincinnati Bengals cheerleader and a Kentucky High School teacher, filed a lawsuit against TheDirty.com after comments appeared on the site alleging that she and her ex-boyfriend had multiple sexual relationships with others. Jones claimed TheDirty.com denied her requests to remove the postings and that the comments invaded her privacy and damaged her reputation. The comments about Jones can be reviewed in the court’s opinion refusing to dismiss the case.

TheDirty.com asked the court to throw out the claims because it was immune under the Communications Decency Act. However, Senior Federal Judge William Bertelsman disagreed, finding that TheDirty.com was responsible, in part, for the objectionable content for the following reasons:

• Putting “dirt” in the name of the site encouraged defamation and invasion of privacy;
• The editors selected only a small percentage of postings;
• The site added “tag lines” to the postings;
• The editors reviewed the postings without verify their accuracy; and
• The site refused to remove certain objectionable posting.

Also damaging, according to Judge Bertelsman in his opinion, was the fact that the publisher, who operates under the pen name “Nik Richie,” had added his own comments to the postings. For example, Richie added a statement “Why are all high school teachers freaks in the sack? – nik.” Judge Bertelsman observed that a jury could interpret such a comment as “adopting the preceding allegedly defamatory comments concerning [Jones’] sexual activity.”

The opinion serves as a lesson for hyperlocal news publishers. Immunity for defamatory claims are limited only to circumstances in which a user has uploaded content without the knowledge or encouragement of the publisher.  Immunity likely is lost once publishers become involved in selecting or editing user content, or if the publishers add their own negative comments.

Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.