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Image: Jezebel

The creator of the a of roughly 70 men in media who have allegedly sexually assaulted or harassed women is being sued by one of the men included on the list. Writer Stephen Elliott filed suit against Moira Donegan, a former editor for the New Republic and the creator of the “Shitty Media Men” list, and as many as 30 unnamed defendants in Brooklyn, New York federal court, alleging that the list consisted of “wholly unsubstantiated allegations, [including] numerous false statements alleging criminal sexual conduct on the part of [Elliott].”

According to Elliot’s complaint, which was filed on Wednesday in the U.S. District Court for the Eastern District of New York and cites claims of defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress, Donegan and the other defendants “conspired to create the Google Spreadsheet entitled ‘Shitty Media Men’ and circulated a link to the list via email, without password protection, for the stated purpose of encouraging the female recipients to anonymously publish allegations of sexual misconduct by men.”

The spreadsheet was widely circulated on October 11, 2017, but taken offline within 12 hours after Donegan learned that BuzzFeed was preparing to publish an article on its contents. Donegan later outed herself as the creator of the list in a lengthy article on New York Magazine’s The Cut website, stating that she “wanted to create a place for women to share their stories of harassment and assault without being needlessly discredited or judged. The hope was to create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.”

Elliott – who is the founder of an online journal called The Rumpus and the author of a number of books – further alleges, “On or about October 11, 2017, the defendants published the plaintiff’s full name in the list, along with the names of several other men connected to the media industry; the plaintiff’s name was entry #13, along with an AFFILIATION of ‘Freelance writer/novelist.’ The defendants further published the defamatory allegations of, ‘Rape accusations, sexual harassment’ [sic] under the ALLEGED MISCONDUCT column heading.”

“The defendants knew the list contained false defamatory statements, including the entirety of the plaintiff’s entry, but published the list to numerous women to intentionally injure, harass, defame, endanger, aggrieve and embarrass the plaintiff,” the complaint further states.

Donegan “has benefited substantially from the publication of the list. In addition to favorable publicity, Donegan has been hired on contract at the New Yorker and was given a contract worth a minimum of six figures to write a book for Scribner Books,” Elliott claims in his suit.

In addition to experiencing “severe emotional pain and suffering,” Elliott claims that he has “suffered economic damages to his career” as a result of the defendants’ publication of the list, “including but not limited to diminished book sales, loss of income, loss of business opportunities … diminished popularity, good will, and interest of journalists, fans, friends, associates, customers and the public at large.”

In addition to seeking $1.5 million in damages, Elliott states in his complaint that he intends to subpoena Google for all “the names, email addresses, pseudonyms and/or ‘Internet handles’ used by the Jane Doe defendants to create the list, enter information into the list, circulate the list, and otherwise publish information in the list or publicize the list … in order to learn the identities” of the other individuals involved for the purpose of naming them in the lawsuit.

Google told the Daily Beast it will fight Elliott’s efforts to reveal these names.

As for Donegan’s likelihood of success of beating Elliott’s suit, at least some sites have cited Section 230 of the Communications Decency Act of 1996 as a potential safe haven. (This is the same statute that the unnamed creator of the fashion industry’s “Shit Model Management” list cited on her website in hopes to avoiding litigation; she has since disabled her list of fashion industry figures that have allegedly engaged in assault or harassment).

The statute in the U.S. Code states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

This may not be a home-run defense for Donegan, unfortunately. Potentially problematic is the fact that the defendant knew (or should have known) that that allegations on the list were unverified and as a result, potentially defamatory, even if not intentionally so. The disclaimer that was included with the list and read, “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt. If you see something about a man you’re friends with, don’t freak out. Men accused of physical sexual violence by multiple women are highlighted in red,” could (unfortunately) prove to be some key language in Elliott’s argument to this point.

Meanwhile, something of a similar lawsuit is currently underway in California state court, where Ralph Watson, the former chief creative officer for Crispin Porter & Bogusky, filed suit in May, alleging that Instagram account, Diet Madison Avenue erroneously labeled him an “unrepentant serial predator” who “targeted and groomed women.” According to Watson’s defamation complaint, the anonymous Instagram account “encouraged his advertising agency employer to fire him without “provid[ing] even a scintilla of evidence or proof supporting any allegations of harassment or other ‘predatory’ misconduct.'”

In August, Watson – who claims that “his life [has been] destroyed wholly on the basis of the defendants’ patently false statements” – was granted the right to “serve limited and specific business records’ subpoenas to” Instagram and its parent company Facebook, as well as Gmail in order to compel identifying information about the anonymous individuals behind Diet Madison Avenue in order to specifically name them as individual defendants in the lawsuit.

While various courts in the United States have recognized that the right to speak – or write or post on Instagram, etc. – anonymously and/or by using a pseudonym is “protected by the First Amendment right to free speech,” such protections, as noted by the Digital Media Law Project, “are subject to the rights of those harmed by unlawful anonymous speech – whether by defamation, misappropriation of trade secrets, or whatever else – [who] have a right to seek compensation for their injury.”

*The case is Stephen Elliott v. Moira Donegan, and Jane Does (1-30), 1:18-cv-05680 (EDNY).