Hooman Karamian a/k/a Nik Richie who runs the “Trash Your Former Best Friend“ website, TheDirty.com has long been the “Teflon Don” against accusations of defamation and other nastiness posted on his web site. His bullet proof armor has been Section 230 of the Communications Decency Act which provides passive web site operators liability immunity for content posted by others. A Cincinnati Bengals cheerleader has now, at least temporarily, put a chink in that armor.
For those unfamiliar with the The Dirty, it is a monument to the dark side of free expression in social media. Users of the site who have “grudges” against other people, generally steal their sometimes revealing and inappropriate photos primarily off Facebook. They then, often violating the copyright of the owner, anonymously post them on TheDirty site with crude and often defamatory narrative. Other users known as “The Dirty Army” as well as allies of whoever posted the material will then add more anonymous, vulgar commentary becoming basically a high school cafeteria style food fight of back and forth insults and defamatory accusations. It is common to see posts claiming an individual has a sexually transmitted disease, AIDS etc. There is also racial and ethnic hate speech targeting blacks, Jews. Asians and gays to name a few. Nik and other employees of the site then add “one liners” regarding the original post. It is this added commentary that may end up costing the site it’s CDA 230 immunity and money unless an appeals court decides otherwise.
In a 2009 , TheDirty ran a post about Cincinnati Bengals Cheerleader Sarah Jones with an anonymous narrative that her ex-boyfriend had cheated on her with more than 50 women and tested positive several times for chlamydia and gonorrhea. The exact text reads as follows:
“Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals.. Most ppl see Sarah has [sic] a gorgeous cheerleader AND highschool 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. . innthat 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”
Nik, added his customary one-liner which started with Why are all high school teachersfreaks in the sack? – nik.” Nik then added further commentary directed at Jones.
The post was never removed despite two requests. Jones filed suit against Nik, and the Web site alleging the usual assortment of defamation and privacy related torts you would expect in such a filing.
Nik and the site, filed a Motion For Summary Judgment premised on immunity under Section 230 of the Communications Decency Act as a passive content provider. The motion was denied. The primary thrust of the the ruling, relying primarily on Fair Housing Council of San Fernando Valley v. Roommates.com, was that the one liner commentary and further engagement by Nik was not passive, and “responsible, in whole or in part, for the creation or development of” the offending content”. In essence, Nik’s one liners and barbs encouraged others to post offensive/defamatory content” about Jones and therefore was no CDA 230 immunity. There is a June 4 trial date. Nik has filed a motion to stay the trial while he appeals the denial of the 230 Summary Judgment ruling to the 6th Circuit.
I have long argued that theDirty.com in adding it’s own commentary to posts created an issue of fact as to whether the site is passive or actively involved in the “creation or development of the offending content” and this would one day come back to bite Nik. I even debated the issue with Nik’s attorney a few years back. In this case it seems Nik’s engagement in the post may be extensive enough that the 6th Circuit will uphold the denial of summary judgment. This is espcially true if they actually focus on the nature of the site as compared to Congressional intent of the statute.
Niks problems are not only in the United States with regards to exposure for content. The site has a strong “Dirty Army” presence in Canada whose speech and privacy laws are more restrictive than in the United States. To get the scoop on the sites potential liability under Canadian law, I contacted Canadian trial attorney Antonin Pribetic. Here is what he had to say:
“Under Canadian law, there are a number of potential legal remedies available from the lifting and posting on the Dirty website of an individual’s photo or likeness and adding defamatory commentary. Unlike U.S. law which affords strong First Amendment protection for most online speech and also protects website owners from intermediary liability under s.230 of the Communications Decency Act, Canadian law conducts a balancing act between free speech and dissemination of public interest information, on the one hand, and increased privacy concerns, on the other. “
In the end, the content on The Dirty is such that it is only a matter of time before a creative attorney is able to circumvent CDA 230 and get one of these to a jury. This may be a case limited to its facts but it should be watched.