Winnipeg Free Press - PRINT EDITION

Skinny on 'the Dirty' lawsuits

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Former Cincinnati Bengals cheerleader Sarah Jones's successful lawsuit against thedirty.com website has stirred litigation interest in Manitobans who allege they've been defamed by the gossip website. Ms. Jones was awarded US$338,000 as damages for anonymous 2009 online posts that falsely claimed she had sex with every Bengals football player and had two sexually transmitted diseases.

Manitobans have found themselves targets of the same Arizona-based website, which is notorious for providing an online forum to defame people and cripple reputations. But Canadians should not see Ms. Jones's win as a precedent for launching defamation lawsuits against "the Dirty." A Canadian defamation claim against the website operator would have to be launched in a U.S. court, presumably in the state where the website is notionally resident or business-registered. Any such lawsuit would, accordingly, be governed by U.S. law.

Canadian defamation law strikes a balance between fostering free speech and protecting reputation. But in the U.S., there's no such balance. Our southern neighbour is the wild west of defamation law. Anyone suing for defamation there faces an onerous legal burden. Ms. Jones's verdict is, therefore, an astonishing win. But also one apt to be overturned on appeal. Unlike Canada, the U.S. has a federal law, the Communications Decency Act, that provides statutory immunity to website operators from liability for content posted to their sites by third parties. But more critically, stateside you can say or write pretty well anything you want about anyone as long as you say it without "malice aforethought" -- that is, "with knowledge it was false or with reckless disregard of whether it was false or not," the U.S. Supreme Court said.

So if a website posts an anonymous, fabricated claim that you're a pedophile, you will lose your defamation suit unless you prove that is a lie, there was malice behind it and the website operator knowingly participated in the lie. In the Jones case, the jury simply imputed malice or reckless disregard to the operator, making the decision open to being overturned on appeal.

While Canadians might applaud the jury's generous damages award, it would be prudent for anyone whose reputation was wounded by postings on the Dirty to wait and see what happens on appeal to higher U.S. courts. In America, even the foulest lie can escape liability by hiding behind the shield of constitutionally protected free speech.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition July 29, 2013 A8

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