THEDIRTY.COM’S OFFICIAL RESPONSE TO SARAH JONES JURY VERDICT BY: DAVID S. GINGRAS, ESQ.

As most of you know by now, on July 11, 2012 a jury of eight women and two men awarded $338,000 in damages to former Cincinnati Bengals Cheerleader Sarah Jones based on two posts submitted to www.TheDirty.com in October and December 2009. These posts contained three statements that Sarah claimed were false. The exact contents of the posts have been discussed elsewhere, so there’s no need to repeat them again here. In the end, the jury agreed with Sarah, found the posts were false, and they held Nik Richie accountable for the statements, even though Nik did not write the posts – a third party did. This case has received a huge amount of publicity and has generated a lot of public commentary for a variety of reasons. Sarah’s status as a former NFL-cheerleader and her arrest during the case resulted in even more attention and interest. These weird facts made the case somewhat spicy and interesting, but from our perspective they are meaningless. Sarah’s background is NOT why the outcome of this case is so important. The reason this case is so important is because it is the first time since 1996 that a website owner has been held responsible for content posted on the site by an unrelated third party. Why is that so controversial? Because it never should have happened. In 1996 Congress passed a law that says website owners, in general, cannot be sued for publishing user-submitted content. A lot of people may not understand what that means, so here’s a brief explanation of the issue. After the verdict, I told the media that the jury’s decision was based on an “incorrect” legal instruction given to them by the judge. OK great, but what exactly does that mean? Let’s take a look at the specific instruction I was referring to – this was Jury Instruction #3 which was part of a larger packet of instructions that the judge gave to the jury. These instructions were supposed to explain the law and how it should be applied to the facts of the case.

Notice what Jury Instruction #3 makes very clear—the jurors were told that Defendants (meaning Nik and Dirty World) “republished” the statements that Sarah claimed were false. The instruction further explains that when Nik “republished” these posts, he had the same legal duties and responsibilities as the original author. In sum, this instruction basically told the jury that they had no choice – they were required to treat Nik as a “publisher” and hold him to the same standard as if he was the author of content that Sarah was upset about. So, what’s wrong with that? Again, the answer is extremely simple—in 1996 Congress passed a federal law called the “Communications Decency Act” or “CDA”. This law has lots of different sections, but there is one specific section that deals with the issue of website owner/operator liability for content submitted by users (which we call “third party content”). This particular part of the CDA is only 26 words long, so I will quote it here in full: This language is a little dry, and I know most people reading this are not lawyers. So, to help make this a little clearer, here’s a lightly paraphrased version of the law: Starting to see the problem now? Dirty World, LLC is the owner of www.TheDirty.com which qualifies as an “interactive computer service”. Courts have unanimously agreed that any website that allows users to post comments is an “interactive computer service”. Next, the only claim that Sarah sued Nik for was defamation. Defamation claims require that the defendant (Nik) “publish” a statement about the plaintiff which is false. Without publication by the defendant, there is no defamation claim. Finally, it was undisputed at trial that Sarah was not suing Nik for Nik’s own words; she was suing Nik because of content posted on the site by a user; i.e., a third party. Sarah’s claims therefore required the jury to treat Nik as the “publisher” of that content, exactly as Jury Instruction #3 said they should do, and exactly as the CDA said they cannot do.

Communications Decency Act; 47 U.S.C. § 230(c)(1):

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information

content provider.

47 U.S.C. § 230(c)(1) [paraphrased]:

No [website owner or user] shall be treated as the publisher or speaker of any

information provided by [a third party].

So, how did this happen? The answer there is again very simple – our judge, William O. Bertelsman, agreed with Sarah’s view that the CDA should not apply here. That decision was based on the judge’s belief that Nik somehow “encouraged” the posts about Sarah. However, nothing in the CDA says that a defendant will lose protection based on mere “encouragement” of third party content. That exact issue has been discussed in dozens of different court cases across the country, and no judge anywhere has ever agreed with the rule applied by Judge Bertelsman. On the contrary, every judge to consider that question has held that “encouraging” users to submit content will not overcome the CDA’s “strong” protection. In addition, there was not a single shred of evidence at trial showing that Nik did anything (other than simply creating the website in the first place) to “encourage” the author of the posts about Sarah to submit her to his site. Nik did not know Sarah and he played no role in the author’s decision to submit the posts about Sarah. He also played no role in creating the contents of those posts. Every word that Sarah claimed was false came solely from the author, not from Nik. That’s precisely the situation in which the CDA applies to protect the website owner/operator. So, what does all this mean? Well, there is really no question that if our view of the law is correct, then Jury Instruction #3 was completely wrong, and if the instruction was wrong, then so was the verdict and judgment. This is why we will be appealing the case to the Sixth Circuit Court of Appeals and if our view is correct, the only possible outcome of the appeal would be a complete reversal of the judgment. In short, if we are right, Nik will be completely vindicated and Sarah’s judgment will tossed out. Having said all this, here are a few additional points you need to know:

• Nik Richie and Dirty World have previously fought and WON this exact issue in a different federal case in Missouri involving virtually identical facts. That case was called S.C. v. Dirty World, LLC, 2012 WL 3335284 (W.D.Mo. 2012). What’s particularly important about the Missouri case is that it was decided in March 2012 – that was after Judge Bertelsman ruled against Nik on the CDA issue in the Sarah Jones case in January 2012. The judge in the Missouri case reviewed Judge Bertelsman’s decision and basically said it was legally wrong. This is important because both cases were decided by federal judges on the same level.

• A lot of people have talked about the First Amendment, and then said something like:

“Yeah, well the First Amendment does not protect defamatory statements.” This is technically incorrect – the First Amendment DOES protect the publication of defamatory statements in some cases (most commonly where the defendant did not know the statement was false). Of course, in this case the jury said that Nik either knew the statements were false or that he acted with “reckless disregard” for the truth since he did not fact-check them. We do not agree with this aspect of the decision, but for purposes of appeal, it is a non-issue – we’re not going to even discuss the First Amendment during the appeal. As long as the CDA applies, Nik will still win regardless of whether the statements are true or false and regardless of whether he knew they were false. None of that is relevant to the CDA.

• Some people have heard about the CDA, but they don’t really understand how it works. These folks often take the position that even if Nik was originally covered by the CDA, that protection should be taken away because Sarah contacted Nik and told him the posts were false. In other words, she “put Nik on notice" that the posts were false, so the CDA shouldn’t apply, right?

That argument might sound appealing at first, but it’s absolutely 100% wrong – every court that has ever considered the issue has agreed that when the CDA applies, its protection is absolute. When the CDA applies, the website owner cannot lose protection merely because someone provides “notice” that something on the site is false. That might bother some people, but consider this – even mainstream sites like Google will NOT remove content just because you notify them and claim that something is false. Don’t believe this? Check out Google’s statement about this here: http://support.google.com/bin/request.py?hl=en-GB&ctx=submitted&confirm=lr_legalother

Since Google does not fact-check content created by third parties and does not remove content upon demand, why should Nik be held to a different standard?

• Is Sarah going to actually get $338,000 from Nik? No chance. For one thing, a lot of

people do not understand the way this works, but when a person “wins” a judgment in a case like this, the defendant doesn’t just hand over a check. Furthermore, if Nik refuses to pay Sarah, it’s not like the police will come and arrest him. That’s just not how private civil judgments work.

• How is Nik taking all this? Pretty well, actually. Losing any case is hard, especially

when you haven’t done anything wrong, but Nik understands that we lost this case for one simple reason—because the judge refused to correctly apply the CDA. To be honest, after the case was over, Nik and I both felt a HUGE sense of relief. In fact, it’s no exaggeration to say we were actually happy with the result.

Consider this – if the jury ruled in our favor, the case would have ended and Sarah would not have any grounds for an appeal. Yes, in a way this would have been good for us since it ended the case in Nik’s favor. However, it also would have left Judge Bertelsman’s bad CDA decision in place. So, if we had prevailed at trial, the CDA issue would have been left unresolved after 3 ½ years of costly litigation. Fortunately, we lost. This means we now get to move on to a different forum (the appellate court). We will have new judges looking at the case from a fresh perspective, and this means we will get to re-raise and re-argue the CDA, and this time, we won’t be arguing alone. We have already received several inquiries from lawyers offering to file briefs in our support. This support is extremely important because if Judge Bertelsman’s ruling on the CDA was allowed to stand, it would open the door for a flood of lawsuits against every website that allows user-generated content. We are confident, however, that his ruling will be reversed in its entirety, thus protecting website owners from claims over user-submitted content.

• Is TheDirty.com going to shut down? NO. Nik plans to continue running the site exactly

as before. After all, the Kentucky court’s decision on the CDA was simply wrong and other courts have agree Nik’s actions are protected, so until the higher courts have a chance to fix this mistake, there’s no reason for Nik to change his site.

• Does Nik have any specific comments he wants to share? Yes and no. Nik feels

exactly like anyone would in this situation – he’s upset about what happened, but that does not mean he feels responsible for someone else’s words. Does Mark Zuckerberg feel badly when a teenager commits suicide after being bullied on Facebook? Sure he does, but that doesn’t mean he’s legally responsible for their death.

Again, keep in mind – although lots of people have said that “Nik defamed Sarah”, this simply isn’t what happened. Rather, someone who knew Sarah used Nik’s website to post comments that Sarah claims were false, and because the court incorrectly took the CDA defense away, the jury believed incorrectly that Nik could be blamed. Finally, keep in mind — Nik has fought and won this exact issue in other cases, so he’s not really worried about the ultimate outcome of this case. In fact, Nik isn’t alone in that view – if you read the news reports about this case, it seems that lots of other independent legal voices have said they believe our position was correct. Moreover, I have not seen a single legal commentator say they think Sarah’s position was right. Think that’s just a coincidence? On the other hand, lawsuits are always stressful, and Nik does not enjoy the idea of having to deal with this case for the next year or two. Unfortunately, that comes with the territory, and because Sarah has made it clear that she wants to shut down Nik’s site, we really don’t have any choice but to keep fighting this battle until the courts decide which view of the law is correct.