I received a very disturbing phone call.   A friend asked me if I knew that a photograph of me was up on the gossip site theDirty.com.  Anyone  familiar with “theDirty” knows  that not all publicity is good publicity. It is a site where people put up unflattering photos of other people and make for the most part almost always unflattering, sometimes hostile and often defamatory comments about the people in the photos.  I went to the web site and found a photo of me in their “Dallas” section that had been pulled off my Facebook page.  Below it was the following caption:

Date Raper in Dallas”

THE DIRTY ARMY: This trout is named Brian Cuban and there isn’t a girl in Dallas who hasn’t felt “dizzy” after he buys them a drink..I know 2 girls that woke up the next day asked what happened and he said “you were screaming all night baby”..I believe it..screaming like a surgery patient that’s awake!! This clown has to lead the world in Rohyphinol(sic) use. Put him on blast and see how many UNDERAGE girls comment on their soapy tasting drinks he has given them!

Beneath it was an additional caption by theDirty chief dirty dog  “Nik Ritchie” stating:

“If I was a girl, I would not do Cuban with your Rohyphenol”

Ironically just 3 weeks later, I received a call from my sister.  She is a local radio personality and was horrified to find a publicity still of herself on theDirty web site.  Under it was the following caption:

This is Stella. She makes a living getting her groove on with anyone she can. She is a band groupie but she never gets to “the band”… She merely f*cks managers, roadies, and guitar techs. Two-faced as they come she is constantly talking sh*t about her friends, going after other people’s boyfriends and spreading around the latest and greatest STD.  To make matters worse she looks like she fell out of the ugly tree and got pummelled with a sack of nickels when she hit the bottom. Don’t even get me started on that trailer park hair. I guess it begs the questions, Nik…. Would you?

Beneath it was an additional caption by “Nik Ritchie” stating:

If she has a STD she must really like to “ride the stick”

What a thing to say about my sister!  I am just kidding of course.  Much to my girlfriend’s relief, this did NOT  happen to me and I do not have a sister. Similar “testimonials” however were posted with photos about two friends of mine.  What should I tell them?   Can they prevail in a lawsuit against theDirty?  What about the poster of the  photo and commentary if he/she can be identified?(often no easy task)

There are four common denominators between the two cases.  The first is that the  photos were taken without permission from their social networking pages.  You don’t have to be a brain surgeon to figure that lesson out.  Watch what photos you put up on your social networking site!  There is no real security from having your photos grabbed. Once on the internet they are there forever to be “dirtied” about at the whim of whoever takes them for time immemorial.  The second is that both have content put up by the end  user called “user generated content” which consists of the photos and the caption.  The third is that there is the content added by “Nik Ritche” on behalf of the theDirty in the form  of his witty one-liners.  This is can be an important distinction. Whether the content on the site is “user generated” or provided in part by the site itself can possibly have an effect on the site operator’s legal immunity from suit under Section 230 of the Communications Decency Act depending on the nature of the content contributed by the web site operator.  The fourth is that each contained statements that, if untrue  are arguably “defamation per se” under Texas law.

With the advent of section 230 of the Communications Decency Act and the safe harbor provisions of  The Digital Millennium Copyright Act passive gossip web content sites such as theDirty as well as business rating sites such as The Ripp Off Report and sites that rate doctors, lawyers(rateaPartner) and other professionals are becoming more  prevalent due to the almost absolute immunity of the site owners  if they are not deemed “content providers”.  Simply meaning, as long as the site consists entirely of “user generated content” they are for the most part immune from liability for nature of the posted content even if tortious in nature.  You will probably not prevail in a lawsuit against them for the tortious content although you can certainly go after the almost always  anonymous person who posted the content.  That person has no immunity from suit.

The Communications Decency Act (CDA)provides protection against liability for torts (including libel, slander and other forms of defamation) for website operators for third-party content posted on their site.

The Digital Millennium Copyright Act(DMCA) provides protection against copyright infringement claims for the user-generated content, if the site owner observes certain “safe harbor” provisions set out by the law.  These provisions provide that web site operators such as “theDirty”  must take down claimed copyrighted content if the following notice is provided to them:

• The name, address, and electronic signature of the complaining party
• The infringing materials and their Internet location
• Sufficient information to identify the copyrighted works
• A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of
• A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner

What is the gist of this legal mumbo jumbo?  Once notice is given to the  theDirty  or similar site, it is required to expeditiously(within 72 hours) remove, or disable access to, the infringing/copyrighted material. There are also provisions for the site to notify the person who put up the content, giving them the opportunity to prove that the images do not infringe anyone’s copyright and have the images put back up.  You can be subject to damages for making a false claim of copyright infringement.  In the case of a site like theDirty and other anonymous rating sites, it seems unlikely that anyone would go to those lengths with the end result that the material would simply come down.

While the protection afforded sites such as TheDirty and TheRippOff Report are broad, some courts have begun to  chip away at those protections.  The most interesting and talked about case in the 230 immunity area is  Fair Housing Council of San Fernando Valley v. Roommates.com,

Roommates.com operates a website designed to match individuals who were seeking housing. The website required users to state their own sex and sexual orientation among other facts about themselves. The site also allowed users to post their own content in an “additional comments” section.  The Fair Housing Councils of San Fernando Valley and San Diego sued Roomates claiming  that its website violated federal and state fair housing laws by soliciting and distributing information based on protected categories—sex, sexual orientation, and family status.

The lower District Court found Roommates to be immune from suit under Section 230. On appeal the 9th Circuit on appeal found them partially liable. The court found that by asking illegal questions  they became a partial content provider” under 230 therefore losing their immunity from suit on that particular issue but not as to others such as user generated comments.

The court in my opinion made an  interesting distinction that arguably has opened up the door to lawsuits against sites like theDirty that are not completely passive, adding their own content that arguably furthers or encourages the posting of content prohibited by law . The court stated:

“A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is “responsible, in whole or in part” for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content”

Importantly the court also states that it was not enough that the website simply “augments” the content in question.  The court stated:

A website helps to develop unlawful content, and thus falls within the exception to Section 230, if it contributes materially to the alleged illegality of the conduct.”

Does  adding Nik Ritchie “one liners” to the posted content “contribute materially to the alleged tortious conduct” if  a caption under a photo posted on the site is  deemed “defamatory?

I would argue that at a minimum it create an issue of fact for a jury.  While the Nik Ritchie blurbs themselves are never defamatory, they go beyond minor edits to content, such as by correcting spelling and the like which would not affect their immunity.  The comments are an integral part of the content posting process designed to encourage further postings. They are often  part of the overall alleged “defamatory feel” of the posted content.

The practice and pattern of the comments added by Ritchie arguably evidence a pattern of conduct designed to specifically encourage posting of user content even if that content is tortious.  To put it simply, people post outrageous, often defamatory captions with photos on theDirty with the specific intent to elicit the expected  zinger from Nik Ritchie. The owners of the site undoubtedly know this. It is part of the site’s draw.  Will this argument win the day?  I really do not know. The courts lean over backwards to protect site owners.

In order to get the perspective of the web site, I went straight to the source.  theDirty.com was gracious in allowing me to interview their attorney. David S. Gingras with the firm of Jaburg & Wilk, P.C. in Phoenix, Arizona. He represents both theDirty and The RippOff Report. His experience in these matters is substantial. He does not agree with my assessment.

“In my view, there’s nothing controversial about that(Roommates.com) holding.  Look at it this way — if someone posted a comment on The Dirty which said: “Brian Cuban is a convicted child molester,” that author would be liable for his statements but The Dirty would be protected by the CDA”

On the other hand, if Nik created a section which said: “What do you think about the fact that Brian Cuban is a convicted child molester?  Post your comments here…” then clearly he is the information content provider of that ‘question’ and he would be liable for it regardless of the CDA.  This isn’t exactly what Roommates says, but that’s the basic idea

“We have dealt with probably 4-5 new cases for Ripoff Report since Roommates was decided, and none of the courts involved have accepted the idea that Roommates has changed the law in any significant way.  Also, it’s important to keep in mind that right around the time Roommates was decided, the 6th Circuit reached nearly the opposite result in the Craigslist case (though I think both cases were correctly decided, and there’s nothing inconsistent about them; they just had different facts)

“Likewise, I have gotten several demand letters directed to The Dirty which mention Roommates, but each time the person making the demand is angry about something said in a user’s comment, not about anything that Nik did or said.  Those kinds of claims are just pure CDA cases, so I don’t feel like Nik has much to worry about”

There you have it.  What was the fate of my two friends?  Upon request the site removed both photos and captions. While I would argue they were required to remove the publicity shot under the DMCA, they would argue that they had no obligation to remove anything else and it was purely at their accommodating discretion that they did so.

It does however drive home the point that the first avenue is simply to ask nicely. If there are photos involved, make your DMCA request pursuant to the procedure set out on the offending site.  They are required to post the DMCA challenge pocedures on their site.   Odds are good that the photo will come down without challenge by the poster. Without the photo whatever nasty caption is up has no context so that will probably come down as well.   A DMCA request to remove the photo  if applicable should always be part of any objection to a defamatory caption.

When all else fails, just ask nicely.  If that fails and you feel there is enough at stake to justify further action, get your attorney to  at a minmum supeona the sites user records to identify the poster who is probably your recently dumped  ex-boyfriend.  It is not an inexpensive process.  Does he have any money to pay a judgment?  Probably not.  That’s why you dumped him in the first place right?  Now go get Dirty!