A Pittsburgh attorney has relaunched his legal attack on DontDateHimGirl.com, alleging in a new federal suit that the operator of the dating gossip website “actively encourages” posters to submit defamatory information.

Todd Hollis's original suit, filed in Pennsylvania state court, was dismissed for lack of jurisdiction in April, leaving unresolved the issue of whether DontDateHimGirl was immune from liability for postings that accused him of having herpes, speculated he was gay or bisexual and described his home as “a dump.”

The Communications Decency Act protects Internet service providers that “passively” publish information from being sued for defamation over content posted by third parties. If a website operator “is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity.”

Hollis, who is now representing himself, filed his new complaint Nov. 30 in Miami federal court, which should have jurisdiction since DontDateHimGirl is based in South Florida. And he portrays the operator of the site, Tasha Cunningham, as being much more than a “passive” publisher.

DontDateHimGirl allows women to submit profiles of men who allegedly cheated on them and, the suit says,

Plaintiff believes Cunningham actively encourages member users to submit false and derogatory information to the website, for the purpose of providing additional “titillation” for the readers of the profiles.

The profiles, Hollis alleges, include “content not provided or inferred by the member user” and Cunningham even “arbitrarily edits the content of certain profiles when requested by 3rd party women.”

The allegations appear to follow the lead of a recent federal appeals court decision which discussed whether a hypothetical website called harassthem.com could be sued for “providing a forum designed to publish sensitive and defamatory information.”

The CDA's protections would not apply “to those who actively encourage, solicit and profit from the tortious and unlawful communications of others,” the 9th U.S. Circuit Court of Appeals said in Fair Housing Council v. Roommates.com, 489 F.3d 921 (2007).

Hollis no doubt will argue that DontDateHimGirl is exactly what Judge Alex Kozinski, who wrote the 2-1 majority opinion, had in mind. But in a dissent, Judge Sandra S. Ikuta said the majority view conflicted with precedent holding that a website operator does not “become[ ] an 'information content provider' if it intentionally selects, edits, and publishes defamatory information.”

The 9th Circuit, moreover, granted Roommates.com's petition for rehearing en banc, which argued that

There is no basis for an interpretation of the CDA that requires a court to evaluate the nature and purpose of a defendant's service and deny protection to those that gather and publish third-party content with an agenda.

By Matthew Heller
12/8/07