Court Sides With Adult Website Owner Over Ad

Rhett Pardon
WASHINGTON, D.C. — In a federal court decision of interest to online adult webmasters, a judge has spurned an attempt by a nude dancer who sued a website publisher after one of its advertisers used a photo of her without her permission.

The ruling involved ErosEscortGuide.com, an online adult site owned by Darkside Productions of Oakland, Calif. The site offers listings of erotic entertainers, massage services, escorts and dancers — both straight and gay — as well as for BDSM and fetish niches.

Elizabeth Ramey, a Washington, D.C.-area stripper, accused Darkside of publishing third-party advertisements featuring her likeness for an adult entertainment service that had not received her permission.

The case, which reached U.S. District Court, gives clarity to a murky part of the law and is a boon for the online adult industry as it consequently bolsters legal protections against lawsuits arising from the activities of third-party advertisers.

The case should help online adult sites and search engines avoid liability from the ads they run, “even if the websites help the advertiser develop the advertising content and decide where to place it," legal expert Eric Goldman told XBiz. "This is good for everyone else who runs third-party ads."

U.S. District Judge Gladys Kessler in her ruling last month rejected the nude dancer's argument that Darkside lost its Section 230 immunity because it made "minor alterations" of the advertisement in question, for example, putting its own web address and a watermark on the images.

"Because defendant did no more than select and make minor alterations to [the] advertisement, it cannot, as a matter of law, be considered the content provider of the advertisement for purposes of Section 230," Kessler wrote in her decision.

Section 230 of the Communications Decency Act of 1996 has become a crucial defense for Internet service providers and websites suing over subscribers' postings in that courts have carved out broad immunity for Internet companies that let customers publish material.

In the last year, courts have been split on limits of Section 230 immunity. In a case brought by "Star Trek" actress Christianne Carafano, a court ruled that Metrosplash.com would lose its immunity if it helped create the disputed content through an automated questionnaire. That decision was overturned by the 9th U.S. Circuit Court of Appeals.

But in another case against former telecom GTE, the 7th U.S. Circuit Court of Appeals said Section 230 was open to broader interpretation. And yet in another case set for hearing in the California Supreme Court, jurists will hear the case of defamatory content from a forwarded email.

The case is Ramey vs. Darkside Productions Inc., No. 00-1415.