Is Don'tDateHimGirl.Com Legal?
The Site Where Women Post Photos and Information About Men They Claim Cheated on Them

It's the rare woman who hasn't warned another woman away from dating one of her ex-boyfriends. But now, a website has brought this informal mode of social control to the Internet, and formalized it.

The site is called Don'tdatehimgirl.com. On it, women aim to alert other women across the country to the cheaters, and other bad apples, in their dating pool. (In a sense, it's the evil twin of another site, GreatBoyfriends.com, where women recommend their exes to other women.)

Doubtless, the men who appear on this site must feel aggrieved - irrespective of whether the postings about them are false or true. Even someone who truly behaved badly in the past may wish for a fresh start. And typically, these men have committed no crime: With a few exceptions, this isn't a private Megan's List, publicizing convictions that are already public record (a development I'd welcome for violent or coercive offenses.)

The site offers men a right of reply - saying it will post their reply next to the original posting. But some men may feel this isn't enough, especially since the posting may sit there for a while before they even become aware of it.

Obviously, the men have the option of attempting to sue the women who post information about them, if they can figure out who they are. (The site gives women the option of posting anonymously, so the men may need to subpoena the site for user information before they can even begin a suit against the woman who's the source of the information. And the site may well fight such subpoenas.)

But what if the men also want to go after the site itself, hoping it has deep pockets? In this column, I'll discuss the feasibility of suits against both the women posting, and the site itself.

If the Postings are False, Are They Defamatory?

Let's start with the potential liability of the women who are the information sources - for the site's liability, if any exists, would derive from the women's liability.

To begin, if the postings are false, and if they state facts, then the women could face defamation suits. Moreover, since the overwhelming majority of the men whose information is posted on the site are not public figures, it's very possible that the men would only need to prove negligence, not the much higher standard of "actual malice" to prevail in their suits. (I've discussed the higher "actual malice standard in detail in a recent column.)

Some of the women's comments will not count as factual, however - and thus cannot be defamatory, even if they end up being quite harmful to their target. A statement an ex-boyfriend is a "jerk," for instance, cannot be the basis for a libel suit, even if he is a model of caring and compassion.

Most significantly for the site's purposes, allegations of "cheating" may end up being a matter of opinion: If a man had dinner alone with another woman, was he "cheating"? Some would think so; some would think not.

But allegations of "infidelity" are more specific, and more easily disprovable - though disproving them may involve, for the man, the painful revelation of private information in the context of civil discovery. It's always difficult and dangerous to try to prove one's purity, for it requires the proof of a negative, as well as delving into private matters. For instance, if a woman had claimed on the website that her ex cheated with another woman, and the ex sued, then both the ex and the "other woman" might separately receive discovery requests asking them to, under oath, chronicle their sex lives during the relevant periods of time. The court might narrow the discovery requests, but not necessarily: Remember when Monica Lewinsky got dragged into the Paula Jones matter (also at base a tort case)?

Moreover, "substantial truth" - truth in substance, but not in the details -- is a full defense to a defamation claim. So any man who is contesting a claim of infidelity, probably should never have been unfaithful - at least, in the recent past.

To add these caveats, though, is not to say that a defamation suit based on a false posting on this site would not succeed. Indeed, such a case might be a slam-dunk: Plainly factual statements occur frequently in the hundreds of postings on the site - statements that claim that men spent thousands on prostitutes, have spent time in jail, and the like. If untrue, these statements may be fairly easy to disprove, and the evidence necessary to disprove them would be less personal, at least, than evidence of sexual activity: It might consist of bank records, or public court records.

If the Postings Are True, Are They an Invasion of Privacy?

But what if the statements are true, and the men feel their privacy has been violated? After all, sexual conduct is generally thought of as private.

In an earlier column, I examined whether a man could successfully sue a woman - Jessica Cutler, whose nom de plume was Washingtonienne -- who'd spilled details of their sexual interactions in her blog. As I noted there, privacy claims are usually judged under the law of the state in which the plaintiff resides - but most states do not allow invasion of privacy suits to be based upon information that is of "legitimate public concern," and require the disclosure to be "highly offensive."

Whether these legal tests are satisfied will probably vary from posting to posting. Including gratuitous sexual details could render a posting "highly offensive"; simply truthfully labeling an ex a cheater might not count. Information might be deemed to be of "public concern" if, for instance, a man was hiding a college reprimand for date rape; but not if, say, the man was deemed to have poor hygiene.

There's one final pitfall: Women should make sure they have the copyright for the photos they post, or that the photos are mug shots (for which the real copyright holder, the government, will never sue). If the photo was taken by a friend of the man, that friend could have a meritorious copyright infringement suit against the woman.

Could the Site Be Liable?

Now that we've covered users' potential liability, what about the site's liability?

Here are the instructions the site gives to women seeking to report a cheater to the site:

"To post a cheating man to our easy-to-use search engine, tell us about him by sending an e-mail to info@dontdatehimgirl.com! Give us his name, age, and tell us where he lives as well. If you have a photograph, we'll post that, too! By e-mailing DontDateHimGirl.com a request to post a cheater, you agree to our Terms of Use and Privacy Policy."

Somewhat ironically, the Privacy Policy is intended to protect the women posting, not the men whose information is posted. The Terms of Use, however, do address the potential privacy and defamation issues - but not very effectively.

For one thing, the Terms of Use purport to make the user "solely responsible" for what she sends to the site. But it's the law, not the site, that determines who's liable, so this language is ineffective.

For another thing, while the Terms of Use make the user promise not to post, among other kinds of illegal material, defamatory or privacy-infringing material, it does not impose any penalty on users who do so, beyond reserving the right to remove postings. It would be smarter if the site, for instance, made each user promise to bear attorney's fees if the site were successfully sued on the basis of her posting.

In sum, the site has failed to optimize its legal position vis-à-vis users. But, more seriously, it has also failed to optimize its legal position vis-à-vis potential plaintiffs.

As I discussed in a previous column about Google, a federal statute protects host sites that offer users access to search engines, message boards, and the like. The statute's purpose is largely to allow sites to edit postings without fear. Previously, sites worried that if they went into, say, a message board, to remove offensive postings, then they would shoulder legal responsibility for the content of all the postings that remained. As a result, some family-friendly sites were, in effect, forced to host content they found offensive. Congress disliked that result, and thus made the immunity a part of the Communications Decency Act; sites can now both edit and host without fear if they fit the Act's requirements. (The Act was largely struck down by the Supreme Court, but this provision survived.)

Dontdatehimgirl.com takes advantage of its ability to edit postings, alerting users that it may do so. Nevertheless, it's not clear whether Dontdatehimgirl.com falls within the statute's protection, because it has assumed a mixed role of host and author. It is the entity actually doing the posting.

Recall that the instructions tell women to "tell us about [a cheating man] by sending an e-mail," and promise that the site will then post the information. Other areas of the site suggest that women may also post information about cheaters directly, without the site's acting as an intermediary. It would be much safer, legally, for the site, if everything were automatic, and nothing was funneled, before posting, through emails read by those who run the site.

From a legal perspective, in other words, the site would be well-advised to consistently, employ the kind of automatized system Congress meant to protect when it passed the immunity - and to just let users post directly. This is a limited immunity, one that, as I discussed in my prior column, affords websites much better protection from defamation and privacy suits than traditional publishers enjoy. It is intended to encourage editing, not to give sites a free pass on liability.

In sum, Dontdatehimgirl.com is a brash, inventive site. But it may be skating on thin ice, legally.