Federal judge sides with ‘Dirty’ website in privacy dispute

Tuesday, June 7, 2011

A website encouraging people to offer dirt on others is not liable for invasion of privacy alleged by a woman even though the operator of the website made unflattering comments about her, a federal judge in Arizona has ruled.

Danielle Dyer, a Missouri resident, sued Dirty World LLC over postings made on “The Dirty” by website operator Nik Richie. At the Arizona-based website, users are encouraged to post images and texts about themselves and others for comments. One section of the website — “Would You?” — encourages users to ask Richie whether he would date the person depicted in a picture.

Dyer’s ex-boyfriend submitted two pictures of her in a bikini and said she “gave me and my buddy the clap while she was sleeping around with us.” Richie responded in the “Would You” section: “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 material at Dyer’s request. However, she filed a federal lawsuit in January, alleging that the comments on the website invaded her privacy and constituted both public disclosure of private facts and false-light invasion of privacy. Dirty World, which operates the website, responded that the privacy claims must fail because The Dirty did not state any actual facts about Dyer. The website also argued that it was immune under Section 230 of the Communications Decency Act, which provides immunity for websites for content created by third parties.

On June 2, U.S. District Judge Stephen M. McNamee rejected the claims in Dyer v. Dirty World LLC. The judge did not address the Section 230 defense but instead found that the privacy claims failed on their merits.

McNamee applied Missouri tort law because Dyer resided in that state. The “public disclosure of private facts” tort requires a plaintiff to show that a defendant published private truths about a person in which the public has no legitimate concern and which causes the person shame or humiliation.

McNamee reasoned that there was no valid claim for public disclosure of private facts because Dirty World LLC did not reveal any private truths. Dyer alleged that Richie fabricated statements about her rather than revealed private truths. McNamee concluded that “only true statements qualify as facts under this tort, and Plaintiff fails to allege that Defendant revealed any private facts.”

“False light” is another variant of privacy law that applies when a defendant makes untrue statements that harm another’s emotional well-being. Missouri law provides that false light claims often are duplicative of defamation claims. In Missouri, false light applies only where a defendant publicly attributes to a plaintiff a statement or opinion that is false or uses another’s likeness in connection with a story that has no connection to the plaintiff.

McNamee reasoned that neither of these scenarios applied in Dyer’s case and rejected this claim. He further held that even if Arizona law applied, the false-light claim would still fail because the statements on the website did not convey any assertions of objective fact but were opinions protected by the First Amendment.

“No reasonable viewer of Defendant’s website would conclude that Mr. Richie’s comments represented anything but the author’s highly subjective opinion about Plaintiff,” McNamee wrote. “The statements at issue on Defendant’s website constitute opinions, albeit rude opinions, that cannot form the basis of a claim for false light invasion of privacy.”

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