Last month, TheDirty.com had a problem. The site’s servers were struggling under the weight of the extra visitors directed to Anthony Weiner’s “Carlos Danger” sexts and, later, photographs of the New York mayoral candidate’s penis.
“You’re talking about anywhere from 20,000 to 30,000 people seeing the site at one time when on average we’re doing 3,000 people per second,” founder Nik Richie says. In total, the Weiner stories’ 30 million hits led to the gossip site’s servers crashing five times. The servers have since been replaced, Richie says. “It cost money, but we fought through the storm.”
While Richie — a 34-year-old entrepreneur born in New Jersey as Hooman Karamian — says that the site made little extra income off the story, overall he’s very happy — it created a brand awareness for a website that had long skirted the outside of East Coast-dominated mainstream media.
However, not long after the Weiner story broke, The Dirty had a new problem — a problem which, according to Richie, may be an existential threat for the site. Last Monday U.S. District Judge William O. Bertelsman sided with an ex-NFL cheerleader and upheld a $US338,000 libel verdict against the site — a big sum for a website that Richie says only employs three people.
The court’s decision related to two posts The Dirty published in 2009 about a former Cincinnati Bengals cheerleader and high school teacher named Sarah Jones. Here are the posts as described by the Associated Press:
In the first, Jones is pictured smiling for the camera with a former kicker for the Bengals with a caption that says she had sex with every single member of the team. The second showed her in a bikini from one of the Bengals calendars, claimed that her ex-husband contracted chlamydia and gonorrhea after cheating on her with more than 50 women, and that he likely gave it to her.
The posts themselves appear to be removed, but Jones is still a huge presence on The Dirty, with posts going back years describing both her alleged escapades and her legal battle with The Dirty itself (one notable headline from last year says “Sarah Jones Is A Pathological Liar“). Jones went on to gain national exposure when she admitted to a sexual relationship with a 17-year-old student (the pair are now engaged).
In a way, that Jones would be turned into a micro-celebrity by The Dirty and then turn on it, exposes the site’s greatest strengths and its greatest danger. Richie founded the site anonymously in 2007 while living in Scottsdale, Ariz. Originally called Dirtyscottsdale.com, the site sought to bring attention to local celebrities that were not big enough to attract the attention of a TMZ or Perez Hilton.
“What I did, I created, similar to the Disneyland model, is characters,” he explains. “I took the people in my small town and I found them and created the Mickey Mouse and created the Minnie Mouse and created the Goofy and gave them these funny nicknames. They became localised celebrities.”
In a way, the site was a self-fulfilling prophecy — because The Dirty said these people were celebrities, they were. “Now you have people with their camera phones taking pictures of these people at the grocery store as if they were Britney Spears.” Money from banner advertisements and club appearances allowed him to quit his day job, go public, and take the site national and even international (“Stockholm, for some reason, has been a big market for us lately,” Richie says.)
The Dirty’s model relied on messages from readers to find these celebrities. Richie would publish these messages and their accompanying pictures — anonymously under the byline “Dirty Army” — with little or no editing. At the end Nik would often write a short, often less than complimentary, comment on the article.
While this may have begun as a matter of necessity — Richie was the only person running the site at the start — working solo gave the site protection because as a one-man-shop he was publishing other people’s content.
Section 230 of the Communication Decency Act (often referred to as the CDA) says that:
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.
This law dates back to 1996, and is hugely important to how the internet functions today. Here’s how the Electronic Frontier Foundation describes it:
This legal and policy framework has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users. Given the sheer size of user-generated websites (for example, Facebook alone has 800 million users, and YouTube users upload 60 hours of video every minute), it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site. Rather than face potential liability for their users’ actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online. In short, CDA 230 is perhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive since 1996.
Richie sees The Dirty as being something like the sites mentioned above — while talking to Business Insider he separately compared the site to Craigslist and YouTube.
However, Judge Bertelsman clearly didn’t see it the same way, and ruled that The Dirty was not allowed to have CDA immunity as Richie played an active role in choosing what to publish and commenting on it. “[A] website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts become a ‘creator’ or ‘develop’ of that content […] is not entitled to immunity,” Bertelsman wrote.
The Weiner scandal may not have helped Richie’s case — he told Erik Wemple of the Washington Post that the story had been fact-checked because he wasn’t sure it was true. “If it’s a major story, I’ll get involved and make sure I’m legally protected,” Richie says. That level of editorial control may well prove to be a legal problem; however, Richie argues that this level of involvement is a good thing. “If not you can just put anything up,” he explains, “And we saw what happened this week, some guy kills his wife and puts it on Facebook.”
Richie argues that Judge Bertelsman “just doesn’t like me and wants to take me down,” and that the judge “just didn’t like the law and the way the law was written, so he decided that what I’m doing is wrong.”
Bertelsman’s decision is unusual — it’s the first time that The Dirty has been found to lack CDA immunity, and Richie has already appealed. Richie says he has heard some people say that the case may make it all the way to the Supreme Court. CDA section 230 itself is becoming increasingly controversial — earlier this year the National Association of Attorneys General sent a letter to key members of Congress asking for Section 230 to be revised so it provided immunity from only civil action, and concern about problems like online bullying is leading to a lot of the law’s negative attention. First amendment lawyers are warning other websites that any ruling could have a big impact, the Associated Press reports.
It’s worrying for Richie, who says that he doesn’t think The Dirty could exist without the CDA. However, the fight over CDA section 230 seems likely to take place elsewhere. EFF staff attorney Nate Cardozo told Business Insider that Judge Bertelsman’s decision was “plainly wrong” and will probably be overturned at circuit level, though CDA section 230 is likely to be an issue in Congress at some point due to pressure against sites like Backpage that can provide links to third-party underage prostitution.
The case reveals some of the difficulties for sites like The Dirty, however — many of its competitors, such as Hunter Moore’s “Is Anyone Up?” have collapsed under the weight of controversy. “Right now there’s a niche market for it and we don’t really have any competition,” Richie says. “Everyone that’s kind of tried to do what we’ve done has failed for some reason.”
Richie admits that he’s getting older and may need to move on at some point. But for now, he’s doing what he can. One of today’s posts on the site has a comment taking a swipe at the legal system. “I hate how judges think they are above the law,” Richie writes.
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