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Jones v. Dirty World Entertainment Recordings, LLC, 840 F.Supp.2d 1008 (E.D.Ky. 2012)

Jones v. Dirty World Entertainment Recordings, LLC, 840 F.Supp.2d 1008 (E.D.Ky. 2012)

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Published by David S. Gingras
Jones v. Dirty World Entertainment Recordings, LLC, 840 F.Supp.2d 1008 (E.D.Ky. 2012)
Jones v. Dirty World Entertainment Recordings, LLC, 840 F.Supp.2d 1008 (E.D.Ky. 2012)

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Page 1840 F.Supp.2d 1008, 40 Media L. Rep. 1153
(Cite as: 840 F.Supp.2d 1008)
United States District Court,E.D. Kentucky, Northern Division,at Covington.Sarah JONES, Plaintiff v.DIRTY WORLD ENTERTAINMENTRECORDINGS, LLC, et al., Defendants.Civil Action No. 09–219–WOB.Jan. 10, 2012.
Background:
Cheerleader for professional footballteam, who was also a teacher, brought action againstwebsite operator, alleging defamation and invasion of  privacy. Operator filed motion for judgment as amatter of law.
The District Court,Bertelsman
 
, Senior District Judge, held that operator was not entitled toimmunity under the Communications Decency Act(CDA). Motion denied.West Headnotes
[1]Libel and Slander 237 33
237Libel and Slander  237I Words and Acts Actionable, and Liability Therefor  237k31Injury from Defamation 237k33 k. Presumption as to damage; special damages. Most Cited Cases  Under Kentucky common law it was libelous per se, that is, without need of proof of malice or actualdamages, to: (1) accuse a person of commission of crime; (2) impute unchastity to a woman; (3) statethat a person had a loathsome disease; or (4) makeany statement that would damage a person in his business or standing in the community.
[2]Libel and Slander 237
 
28
237Libel and Slander  237I Words and Acts Actionable, and Liability Therefor  237k26Repetition 237k28 k. By others in general.Most Cited  Cases 
Torts 379 355
379Torts 379IV Privacy and Publicity  379IV(B)Privacy 379IV(B)3 Publications or  Communications in General 379k355 k. Defenses in general. Most  Cited Cases Operator of website specifically encourageddevelopment of what was offensive about content of the site, and therefore, was not entitled to immunityunder the Communications Decency Act (CDA) fromdefamation and invasion of privacy claims under Kentucky law by cheerleader for professionalfootball team, who was also a teacher, regardingmessages about her posted on website, includingstatements she had slept with every player on theteam and that she potentially had sexually transmitteddiseases, as well as naming where she taught; nameof website encouraged posting of “dirt,” operator acted as editor and selected small percentage of submissions to be posted, operator added a tagline,operator reviewed posting but did not verifyaccuracy, he decided if postings should be removed if he received an objection, operator refused to remove postings about cheerleader, operator added his owncomments to many postings, including his ownopinions, and operator added comment “Why are allhigh school teachers freaks in the sack” to messagesabout cheerleader. Communications Decency Act of 1996, § 509(f)(3), 47 U.S.C.A. § 230(f)(3).
*1009
 
,Eric C.Deters & Associates, P.S.C., Independence, KY,Geoffrey P. Damon
 
,Cincinnati, OH, for Plaintiff.© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
Page 2840 F.Supp.2d 1008, 40 Media L. Rep. 1153
(Cite as: 840 F.Supp.2d 1008)
Alexander C. Ward, Huddleston, Bolen, LLP,Ashland, KY,Alexis B. Mattingly,Huddleston, Bolen, LLP, Huntington, WV,David Gingras
 
, Gingras Law Office, PLLC, Phoenix, AZ, foDefendants.
OPINION AND ORDER
BERTELSMAN, Senior District Judge:This case raises important issues concerning theinterpretation of the Communications Decency Act(CDA),47 U.S.C. § 230. The case is before the Courton defendants' motion for judgment as a matter of law. (Doc. 64). The Court heard oral argument onthat motion on December 9, 2011. The Court nowissues the following Opinion and Order.This is a defamation and invasion-of-privacyaction 
against the defendants Hooman Karamiana/k/a Nik Richie or Nik Lamas–Richie, the operator of a web site named “the dirty.com” and thecorporations through which he operates it: DirtyWorld, LLC and Dirty World Entertainment, LLC.FN1. Also included is a claim for intentionalinfliction of emotional distress.The defendants admit that facially defamatoryand privacy-violating posts were made to their website concerning the plaintiff Sarah Jones.In a prior opinion 
ruling that this Court could properly exercise personal jurisdiction over thesedefendants, the Court summarized the essential factsas follows.FN2. 
(E.D.Ky.2011).Defendant Dirty World, LLC operates, from its principal place of business in Arizona, an Internetweb site known as “the dirty.com.” (Second Am.Compl. (“SAC”) ¶ 4). This web site invites and publishes comments by individuals who visit the site,and defendant Hooman Karamian, a/k/a Nik Richie(“Richie”), responds to those posts and publishes hisown comments on the subjects under discussion.(SAC ¶¶ 3, 14, 19).Plaintiff Sarah Jones is a citizen of Kentucky; aresident of Northern Kentucky; a teacher at DixieHeights High School in Edgewood Kentucky; and amember of the Cincinnati BenGals, the cheerleadingsquad for the Cincinnati Bengals professionalfootball team. (SAC ¶¶ 1, 12).On October 27, 2009, a visitor to “the dirty.com” posted a message stating: Nik, this is Sara J, Cincinnati Bengal[sic]Cheerleader. She's been spotted around town latelywith the infamous Shayne Graham. She also hasslept with every other Bengal Football player. Thisgirl is a teacher too! You would think withGraham's paycheck he could attract something alittle easier on the eyes Nik!Upon learning of this post, plaintiff emailed theweb site and requested that the post be removed because she was concerned it could affect her job.After initially receiving a response stating that theweb site would remove the post, plaintiff was toldthat the post would not be removed.On December 7, 2009, another post was made to“the dirty.com:” Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals .. Most ppl seeSarah has [sic] a gorgeous cheerleader ANDhighschool teacher.. yes she's also a teacher.. butwhat most of you don't know is.. Her ex Nate..cheated on her with over 50 girls in 4 yrs.. in thattime he tested positive for Chlamydia InfectionandGonorrhea.. so im sure Sarah also has both..
*1010
what's worse is he brags about doing sarah in thegym.. football field.. her class room at the schoolwhere she teaches at DIXIE Heights.(SAC ¶¶ 9–13). In response, Richie posted:“Why are all high school teachers freaks in the sack? —nik.” (SAC ¶ 14).Again plaintiff emailed the web site requestingthat the posts be removed, but her requests wereignored. (SAC 21). Plaintiff's sworn narrative© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
Page 3840 F.Supp.2d 1008, 40 Media L. Rep. 1153
(Cite as: 840 F.Supp.2d 1008)
describes the effect that these and other posts on “thedirty.com” had with respect to her teaching position,her membership in the Cincinnati BenGals, and her  personal life. (Doc. 18).Additional facts are stated in the analysis,
infra.
I. ANALYSIS
1.
The Communications Decency Act (CDA)
The defendants claim absolute immunity under this Act.In
Cir.2008) (en banc), the United States Court of Appeals for the Ninth Circuit, sitting en banc,summarized the applicable provision of the CDA asfollows:Section 230of the CDA immunizes providers of interactive computer services against liabilityarising from content created by third parties: “No provider ... of an interactive computer service shall be treated as the publisher or speaker of anyinformation provided by another informationcontent provider.” 47 U.S.C. § 230(c).This grant of immunity applies only if the interactivecomputer service provider is not also an“information content provider,” which is defined assomeone who is “
responsible, in whole or in part, for the creation or development 
of” the offendingcontent. 
. 
(emphasisadded) (footnotes omitted).The defendants here claim that they are entitledto absolute immunity under the CDA because theyare not “an information content provider.” Theycontend their site merely posts comments by the public and that they are not “responsible in whole or in part, for the creation or development of theoffending content.”The Sixth Circuit has not had occasion to decidewhat actions by a web site operator will constitute“creation or development of the offending content” of a site. However, the Ninth and Tenth Circuits havedone so in cases which this Court finds persuasive inthis matter.In 
the en banc court held thatthe defendant there was not entitled to immunityunder the CDA because the defendant requiredsubscribers to the site as prospective landlords or tenants to include information that was illegal under the Fair Housing Act.
For example, those posting to the site had to fill out a questionnaireindicating racial, gender, family-status and sexual-orientation preferences for the apartments theywished to rent or rent out.The court held that by imposing thisrequirement, “Roommate [
 sic
] becomes much morethan a passive transmitter of information provided byothers; it becomes the developer, at least in part, of that information. AndSection 230  provides immunity only if the interactive computer service does not‘creat [e] or develop[ ]’ the information ‘in whole or in part.’
See
Also in point is
. This case involved the operator of a web site that soldvarious personal data, including telephone records. Indoing so, it violated certain federal confidentialityregulations. 
*1011
After discussing the background of theCDA and the reasons for its passage, the court statedits approval of the rationale of 
Thecourt held that the defendant before it could not claimimmunity under the CDA, enunciating the controllingtest for determining immunity as follows:We therefore conclude that a service provider is“responsible” for the development of offensivecontent only if it in some way specificallyencourages the development of 
what is offensiveabout the content.
 
(emphasis added).This Court agrees that this is the correct rationalefor the interpretation of immunity provisions of theCDA.© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

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