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Cheerleader’s case a blow to online free speech

ROCHESTER, NY — The NFL regular season has wound down and once again the Bills are out of the playoffs. For a little excitement, and additional angst, Bills fans can study the advance sheets. Scattered throughout are cases involving, directly and indirectly, the NFL. Take Sarah Jones’ defamation suit against Nik Ritchie.smartphone apps

Jones was a cheerleader for the Cincinnati Bengals and a high school teacher. Richie operates a gossip website called Users post the comments, to which Richie may add a few words. The website may be best known for breaking the last scandal about Anthony Weiner.

Back in 2009, an anonymous person posted a message on The Dirty that Jones had “slept with every Bengal Football player.” Several weeks later, the same or another person posted anonymously that Jones “tested positive” for two sexually transmitted diseases and her husband had sex with her at school on multiple occasions. To the second post Richie added, “Why are all high school teachers freaks in the sack?”

Upset, Jones requested Richie remove the postings. When he ignored her, she sued him for defamation and intentional infliction of emotional distress. She did not attempt to name as a defendant, even as a John Doe, the author of the two anonymous postings.

After several twists and turns, including Jones’ conviction for sexual misconduct with a student and a hung jury, Jones v. Dirty World Entertainment Recordings, LLC reached a conclusion this July. A second jury found Richie liable and awarded Jones $338,000.

The judge directed the outcome when he instructed the jury Richie “had the same duties and responsibilities for re-publishing libelous materials as the author of such materials.” The instruction on republication may be true at common law but contradicts federal law.

Richie has appealed and has attracted all sorts of mainline supporters, including the ACLU. Here is why.

In 1998, Congress faced a quandary. The Internet was emerging as a robust medium for the exchange of information and opinions, some of which were defamatory. The courts were splitting on whether the providers of space on the Internet could be held liable for content furnished by third parties.

Congress decided to err on the side of the providers of the space and free speech. It enacted the Communications Decency Act of 1998. Section 230 of the act reverses the common law rule on republication, declaring “(n)o provider or user of an interactive computer service shall be treated as the publisher or the speaker of any information provided by another” person or entity.

Courts have construed the immunity broadly. Up until Jones, they have regularly dismissed suits seeking to hold a provider liable “for its exercise of a publisher’s traditional editorial functions, such as deciding whether to publish, withdraw, postpone or alter content.” (Zeran v. America Online, Inc.)

A provider of space may lose the immunity if it is “responsible … for the creation or development of information” which in of itself is illegal or actionable. Thus a provider may be held liable for selling data protected by law on the Internet, data which its researchers collected. (Federal Trade Comm’n v. Accusearch.)

The trial court believed Richie lost his immunity because he “specifically encouraged (the) development (of) what is offensive about the content of the site.” It cited the name of the site, the manner in which Richie managed the site (selecting posts and raising a “Dirty Army” of fans to attack critics of posts), and his personal comments.

The problem with the analysis is no factor cited by the court is tied to any illegality. “Dirt” is gossip and gossip may be offensive, but neither is defamation per se. Richie’s comment about teachers being freaks is not actionable. Attaching the comment to a third party’s allegedly defamatory post does not make the comment defamation.

“Encouragement” is not a standard capable of limitation. Its application makes Richie liable for everything posted to his website, Section 230 notwithstanding.

Many consumer websites, such as TripAdvisor and, would also be vulnerable to suit under the standard. Like Richie, they solicit users to provide information about businesses, display the information, and expect users to act on the information. The information may be damaging to a business and even actionable. However, these possibilities do not lessen the important public purpose the sites serve.

Congress passed Section 230 to foster the exchange of information through the Internet. While Jones was defamed, Richie was not the defamer. Letting the award stand will lead to less information exchanged, not more.

Scott Forsyth is a partner in Forsyth & Forsyth in Rochester, New York.

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