Website with "rude opinions" not liable for privacy invasion

Online photographs of a bikini-clad woman accompanied by unflattering comments did not invade her privacy, a federal judge in Arizona recently ruled.

Missouri resident Danielle Dyer sued the owner and operator of www.TheDirty.com over statements its host Nik Richie posted as part of the site’s “Would You?” feature. In this portion of the site, users submit photos of themselves and others, and ask Richie whether he would date the person depicted in the image.

Last August, Dyer’s ex-boyfriend submitted to the “Would You?” category two photographs of her posing in a bikini in front of a mirror. He alleged that Dyer, whose name was redacted to read “Danie*le D***r”, “gave me and my buddy the clap while she was sleeping around with us.”

In his “Would You?” response, Richie said: “No it looks like she just had a baby, and if a girl is willing to take 2 guys on then I suggest you use a rubber.” The website later removed the information at Dyer’s request.

Nonetheless, she sued the site for public disclosure of private facts and false light. She did not bring any claims against her ex-boyfriend, at least not in this particular suit.

The judge dismissed both privacy claims in Dyer v. Dirty World, LLC last week. A public disclosure claim requires a plaintiff to show that the defendant published private truths about the plaintiff in which the public had no legitimate concern and which would shame or humiliate a reasonable person, the court said.

However, Dyer did not allege that Richie published private truths about her, the court said. Rather, she claimed that he fabricated his posted comments, according to the court.

"Only true statements qualify as facts under this tort, and Plaintiff fails to allege that Defendant revealed any private truths about her," the court held.

The judge also tossed Dyer’s false light claim, saying that, because the Missouri Supreme Court has found that false light is often duplicative of defamation, the state high court has identified only two situations where false light may be recognized, neither of which are applicable to this case. The two scenarios are where a defendant publicly attributed to the plaintiff an opinion or utterance that was false and where one used another’s likeness in connection with a story unrelated to the plaintiff, such as if a defendant published a picture of a plaintiff next to a news story that had no relation to the plaintiff.

However, Dyer claimed that Richie made untrue statements about her and did not allege that he engaged in either type of conduct recognized by Missouri courts as actionable false light. Thus, the federal court dismissed the cause of action, but not without noting that even in those states that recognize false light in broader circumstances — in Arizona, for example, where TheDirty.com is based — Dyer’s claim would still fail.

In most of those states, false light requires a plaintiff to show that a defendant’s false statements or, in some states, untrue implications caused the plaintiff emotional injury. In this case, Richie’s statements were non-actionable opinions that could not reasonably be interpreted as actual facts about Dyer, the court held.

“Mr. Ritchie’s [sic] statements are not susceptible to being proved true or false,” it said. “There is no objective standard for what someone who just had a baby looks like or for Mr. Ritchie’s [sic] insight on how one should treat women who date two men simultaneously. The statements at issue on Defendant’s website constitute opinions, albeit rude opinions, that can not form the basis of a claim for false light invasion of privacy.”

Because the court dismissed both of Dyer's claims, it did not address whether Section 230 of the Communications Decency Act, which immunizes providers of interactive computer services from liability stemming from content created by third parties, would have barred Dyer's claims, as the website defendant argued.