So back in January of 2013 a class action suit was filed against the revenge porn website Texxxan.com, GoDaddy who hosted the website, its uploaders and its subscribers. Eric Goldman who regularly contributes to Forbes on intellectual property law and Internet law, said at the time he felt the case was weak. Now to give some context Mr. Goldman has been a staunch proponent of 47 USC 230, section 230 of the the Communications Decency Act, he has been worried that with the recent cases involving revenge porn that some may try to create new laws which circumvent or become an exception to section 230.
Goldman writes:
A New Federal Crime? To get around Section 230, revenge porn advocates want to create a new federal revenge porn crime. This wouldn’t help the plaintiffs directly in the lawsuit–only the government can prosecute crimes–but it would expose GoDaddy and many other service providers to potential criminal liability (i.e., jail time) for the bad acts of their customers’ users. A new crime like that could have significant collateral consequences on legitimate activity, as GoDaddy and other vendors become overly conservative to avoid any risk of betting their liberty. So, while the law currently makes it clear that web hosts aren’t liable for the malfeasance of their customers’ users, a new federal crime almost certainly would fundamentally change that calculus.
Originally a Texas state trial court had ruled that Texxxan’s web host, GoDaddy, was liable for hosting the site. That has now been overturned as a Texas appellate court ruled that Go Daddy is exempt under section 230.
From the Forbes article:
GoDaddy was Texxxan.com’s web host. As a result, GoDaddy didn’t directly interact with the true bad actors, the people who submitted the revenge porn for publication. Instead, the plaintiffs allege that GoDaddy didn’t pull the plug on Texxxan.com, its hosting customer, fast enough. That kind of argument is exactly what Section 230 was supposed to preempt.
To get around Section 230, the plaintiffs argued that Section 230 didn’t apply to intentional torts, obscene material that isn’t constitutionally protected, and civil lawsuits based on criminal statutes. The plaintiffs also argued that GoDaddy didn’t follow its user agreement. The court decisively says that none of these arguments work:
All of plaintiffs’ claims against GoDaddy stem from GoDaddy’s publication of the contested content, its failure to remove the content, or its alleged violation of the Texas Penal Code for the same conduct. Allowing plaintiffs’ to assert any cause of action against GoDaddy for publishing content created by a third party, or for refusing to remove content created by a third party would be squarely inconsistent with section 230.
Read the full article here
Now Goldman does just not want to see Go Daddy protected, he is not a fan of revenge porn but does not think section 230 should be changed. He points out how just about every major company that deals in user generated content, came to the aid of TheDirty when they lost a case (which is being appealed) to a former Cincinnati Bengals cheerleader who herself ran into problems by sleeping with an under age student in her class.
The facts in this case are stranger than fiction, which makes this case an Internet Law classic. The lawsuit is against a website, TheDirty.com, run by Nik Lamas-Richie (f/k/a Hooman Abedi Karamian). TheDirty allows users to submit gossip, which is often about young women and often mean-spirited and misogynistic. Richie selects some user posts, typically adds brief remarks (a sentence or two of snark), and then posts the selected submissions to his website. Due to its large readership and good Google indexing, being featured on TheDirty has the potential to be life-altering.
The plaintiff is Sarah Jones, a former teacher and NFL cheerleader (she was a “Ben-gal”). Jones was featured on TheDirty twice, including allegations that she had a sexually-transmitted disease and had sex with an entire pro football team. Initially she sued the wrong website, TheDirt, and won a multi-million dollar but worthless default judgment. Correcting the error, she subsequently sued TheDirty for defamation.
Normally, lawsuits like Jones’ are preempted by a federal law, 47 USC 230 (Section 230), that says websites aren’t liable for third party content. Section 230 has been referenced in hundreds of cases, most of which have cleanly and unambiguously applied the law to protect websites from liability–even if they exercise editorial control, and even if they know the content could be defamatory. For more on why the Section 230 immunity has been so effective, see this essay.
Despite these legal precedents, in January 2012, the district court rejected TheDirty’s Section 230 defense in a slight and confusing opinion. This allowed the case to go to a jury trial. In the interim, Jones ran into serious legal trouble of her own because she had sex with one of her under-age students. In October 2012, she pleaded guilty to a felony. In a (romantic?) twist, in June 2013 she got engaged to the victim of her crime.
Despite Jones’ criminal behavior, in July 2013 the jury awarded Jones $338,000 in damages (a nice engagement present!). Jury instruction #3 said the jury should hold Richie responsible for users’ submissions–basically, the instruction told the jury to ignore Section 230. For more about the jury award, see TheDirty’s official statement in response to the jury award.
You can read that full article here.
