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A federal judge in New York will soon have to decide whether to send Moira Donegan to trial for allegedly defaming Stephen Elliott in a spreadsheet called “Shitty Media Men,” which circulated in October 2017 and allowed women to anonymously contribute stories of being victims of sexual misconduct. On Wednesday, summary judgment papers were unsealed and preview a forthcoming ruling that is certain to be legally adventurous.
Elliott, a widely published author and director of About Cherry and Happy Baby, is looking to punish Donegan, creator of the spreadsheet, for an entry that accused him of rape, sexual harassment and coercion.
In response, Donegan has deployed a rather innovative defense: Section 230 of the Communications Decency Act, which affords providers and users of tech services fairly broad immunity for third-party content. Typically, when Section 230 gets discussed, it’s in the context of how the law shields the likes of Facebook and Twitter. Much rarer are conversations about the legal privileges for those using interactive services like Donegan, who was inspired by the #MeToo movement to create and provide a Google spreadsheet for other women working in media.
But a Section 230 defense will only work for Donegan if the defamatory statements were really made by someone else, and Elliott is telling a judge that there is a genuine dispute of material fact regarding her responsibility for the content. In opposition to summary judgment, Elliott doesn’t have evidence that firmly establishes she was the individual who accused him of rape. But Elliott seizes upon deleted communications and her lack of recall during a deposition to challenge her credibility. In particular, Elliott has been frustrated in learning what exactly she solicited from others, and whether she encouraged unlawful content.
“There is little in [the] way of documentary evidence because Ms. Donegan destroyed it after being advised she could face legal liability,” states Elliott’s opposition brief. “As the majority of communications are not before the Court, and Ms. Donegan cannot recall what she wrote in the email in which she circulated the spreadsheet, she fails to meet her burden regarding specific encouragement.”
Donegan’s attorneys respond that doubts about credibility aren’t enough to overcome summary judgment, especially when she sat for a 12-hour deposition and has provided affidavits about her role with respect to the spreadsheet. “[T]he undisputed facts drawn from that record confirm that Ms. Donegan neither created nor developed the alleged defamatory statements about Mr. Elliott,” states the unsealed brief.
The coming decision from U.S. District Court Judge LaShann DeArcy Hall will also likely get into a fuller examination of what it means to specifically encourage unlawful content. That’s because there’s some legal precedent (here and here) for the notion that tech services forfeit Section 230 immunity by doing such.
Was Donegan’s role merely administrative or something more?
“I wouldn’t say that I encouraged or incited or invited or solicited,” she testified. “I would say I made the document available for women to put their experiences of sexual violence and sexual harassment into it.”
Although Elliott hypes destruction of evidence, he does point to one of her emails to suggest her role was much greater than a mere publisher of content contributed by others. In one email where she explained the shut-down of Shitty Media Men, she wrote, “I got advice from some lawyer friends that I and the other original non-anonymous commenters were open to libel suits. People were starting to use the sheet for calling out aggressive dates and creepy DMs, which are real violations but also not what I wanted to use the document for — it put me in a position of arbitrating whose trauma ‘counted’ and whose didn’t, which just felt so awful.”
Elliott’s attorneys at Nesenoff & Miltenberg write in the brief (read here) that if she was merely providing a neutral platform in which users entered information, she wouldn’t be in a position of arbitrating whose trauma counted.
“No reasonable juror would read this email as establishing that Ms. Donegan was actively controlling, editing or altering the content of the Spreadsheet,” respond Donegan’s lawyers Roberta Kaplan and Joshua Matz. (See full brief here.) “In fact, it establishes the very opposite proposition: she did not want to be in that position and therefore shut the Spreadsheet down rather than seek to arbitrate what content would appear.”
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