Website Allows Jilted Women to Vent: But Is It Legal?

Website Allows Jilted Women to Vent: But Is It Legal?

by Michelle Kaminsky, Esq., December 2009

To the women reading this (men, we'll get back to you in a second): Been jilted? Cheated on? Lied to?

Now's your chance to get even.

You can post your frustrations by calling out your ex on a website called "Don'" You can post his full name, age, race, height, weight, city, photograph, and a brief summary of how you have been wronged. And you can do it all anonymously!

Sound too good to be true? Maybe it is.

The site, created by Tasha C. Joseph after hearing tale after tale of bad relationships from girlfriends, has come under fire from mostly, you guessed it, men, but also from some legal commentators. Men do have the opportunity to respond to postings, perhaps clearing up matters, but many claim it's not enough. Most men don't even know they are featured on the site.

Do the men have a point? Is this website illegal? If men were to bring suits, they'd be looking at two potential defendants: the women posters and the website itself.

First of all, if the men would like to sue the posters, they would have to find out who they are; most women do, in fact, put up messages anonymously. Determining their identity would entail getting a subpoena from a court, which may prove difficult because of First Amendment freedom of expression concerns. Although technically a suit can be filed against an anonymous poster, as one Pennsylvania judge has done recently, it can end up being very costly, difficult to win, and more frustration than it's worth.

The most obvious claim against posters would be a defamation claim. Here, the women should worry if they are posting untrue facts about their ex, e.g., that he served time in prison, that he has five kids, that he has solicited underage girls for sex over the Internet. Because these are facts, they can be disproved, and if the ex is not a public figure (as most of the men listed), he would only have to show negligence in posting—a relatively easy standard to meet. On the other hand, if the man is a public figure (a handful of actors and professional athletes are listed), the standard is actual malice and much more difficult to show.

Opinions cannot be challenged in a defamation suit; therefore, comments that the man is a slimeball, or any variation thereof, are safe from defamation claims as these clearly fall under the First Amendment freedom of expression.

One note, however, is that "substantial truth" is a complete defense to defamation claims. This means that even though the details of a post may not be accurate, if the substance of it is more or less true, it's not defamation. For example, if a woman writes that her ex frequents the same strip club on Saturday nights, but in reality he does this every Friday (shown by credit card receipts, for instance), her post would be substantially true and cannot form the basis of a defamation suit.

Another potential claim would be invasion of privacy; some states have the more specific tort called "the publication of private facts." Standards for proving invasion of privacy vary, but in general, a plaintiff would have to show that the post is highly offensive and of a legitimate public concern. Judging from the typical posts, though, both of these standards would be difficult to meet. Women typically complain of infidelity and general untruthfulness, highly a matter of public importance on an individual level. Moreover, word choices may not be pleasant with descriptions of men as jerks, players, and plain old liars, but few would be considered "highly offensive."

A disgruntled ex could also try to bring an intentional infliction of emotional distress claim but probably wouldn't prevail. A win in one of these suits is rare because proving that defendant's "extreme and outrageous" behavior caused "severe emotional distress" is nearly impossible.

The tort of public disclosure is another potential claim, but again, this might be difficult to establish. Generally, a plaintiff must show that there was a public disclosure of private information of a "highly offensive" nature that is of no concern to the public and that identified the plaintiff. If a post is so egregious to warrant such a claim, it might be worth pursuing, but note that even the public disclosure requirement might be a stumbling point if the information has already been circulated elsewhere—including among a group of coworkers, for instance.

Regarding the website, all of the above claims could arguably be brought against it as well. Does the site effectively protect itself from liability?

For legal provisions, the site provides a "Privacy Policy" and its "Terms of Use." The Privacy Policy covers only the women posters, describing the kinds of personal information the site collects and for what purposes.

The site's Terms of Use state that users are "solely responsible" for the content they enter, warns against posting items that are offensive or even illegal, and reserves the right to delete postings—with no further penalty to users who violate the terms.

Unfortunately for, though, merely saying that users are solely responsible doesn't make it so. This wishful thinking on the part of the website is somewhat like the waivers on tickets to sporting events—everyone knows that contrary to what your ticket stub says, you still may be able sue for injuries sustained at the ballpark.

If any claims were raised against it, the website would seek coverage under the Communications Decency Act. Before this Act was passed, webhosts were forced to choose whether to leave all posts alone (even offensive ones) or to monitor and edit out certain content, thereby accepting responsibility for anything that slipped through the review process. Now, this federal statute provides webhosts a shield against liability so that they can both host and edit discussions without fear of being sued for the content therein—if the hosts are really only hosts and not authors of posts. Whether Don' would fall into this category is a complicated legal question.

The self-proclaimed "Internet's largest database of lying and cheating men" has proven extremely popular with as many as a quarter of a million hits a day, but it and its posters may be on shaky legal ground—whether a lawsuit would be worth an aggrieved man's time, money, and further intrusion into his private life is another question.

Not to worry, though, guys, as a link in the lower right corner of the site's search page offers a unique alternative to a court room battle—a brand new website called Don'