Sixth Circuit: TheDirty.com not liable for user's posts, even when commentary added

Cindy Gierhart | Libel | News | June 17, 2014

Nik Richie, operator of the website TheDirty.com, cannot be held liable for potentially defamatory remarks made by a third-party poster on his website, according to a Sixth Circuit Court of Appeals ruling released Monday.

The court reversed a district court ruling that held Richie could be liable because he “encouraged” defamatory statements and then “adopted” the statements by adding his own comments to the posts.

The court describes TheDirty.com as “a user-generated, online tabloid” where users can post gossip about anyone, often private individuals.

Sarah Jones, a Cincinatti Bengals cheerleader and high school teacher, sued Richie for statements alleging she had contracted sexually transmitted infections from her ex-boyfriend and that she had sex with him in her classroom. An anonymous poster submitted the comments, and Riche selected them for posting and added his own comment, “Why are all high school teachers freaks in the sack? -nik.”

Typically, website operators are protected from liability under Section 230 of the Communications Decency Act. Under the act, website operators can only be sued if they are “responsible, in whole or in part, for the creation or development of [the] information.” For example, Facebook cannot be held liable for a defamatory comment someone posts; only the person who posted the comment could be held liable.

The lower court determined that Riche had crossed the line from passively providing a forum for content into “developing” the content by encouraging libelous comments and commenting on them. The Sixth Circuit disagreed.

The Sixth Circuit decided the test to determine whether a website operator could be held liable is whether the website operator “materially contributed” to the defamatory statements.

Richie selected which posts to publish; edited them to remove nudity, threats of violence, and racial slurs; and added his own comments to the posts – but he did not compensate users for their posts, his comments were not in themselves defamatory, and he did not require users to post defamatory statements. Therefore, the court held that Richie did not “materially contribute” to the potentially defamatory statements posted on his website and could not be held liable for them.