Barstool Sports Founder David Portnoy Files Defamation and Invasion of Privacy Lawsuit in Federal Court Against Insider, Inc.
On Monday, Barstool Sports founder David Portnoy filed a complaint in the US District Court for the District of Massachusetts, alleging causes of action for defamation and state-law invasion of privacy against Insider, Inc., which included naming Insider employees and officers including CEO Henry Blodget, Global Editor in Chief Nicholas Carlson, and Reporters Julia Black, and Melkorka Licea.
The lawsuit surrounds two Business Insider stories which alleged multiple instances of improper behavior and conduct against Mr. Portnoy. Insider’s first story states that Mr. Portnoy “violently raped and sexually assaulted three unnamed females” which the lawsuit alleges as an outright fabrication.
The lawsuit alleges that, “Mr. Portnoy has never sexually assaulted anyone, and Defendants are well-aware of this fact. Nevertheless, Insider is attempting to cash in on the climate of fear and “cancel culture” permeating the media, whereby it has become open season for anyone to make any claim (no matter how vile and unsupported) about anyone seemingly without consequence. There are, however, consequences for unlawfully defaming someone.”
“Mr. Portnoy brings this action to clear his name, to set the record straight, and to recover the substantial damages that Defendants caused him as a result of the irresponsible and defamatory stories they published about him,” the lawsuit continues.
Insider allegedly engaged in a targeted smear campaign designed to destroy Mr. Portnoy’s reputation and boost its viewership and subscription revenue according to Court filings.
On November 4, 2021, Insider published its first Portnoy focused article on Businessinsider.com, titled “‘I was literally screaming in pain’: Young women say they met Barstool Sports founder Dave Portnoy for sex and it turned violent and humiliating.” The lawsuit alleges that for search engine optimization and “clickbait” purposes, the First Story’s URL included the words “portnoy,” “choking,” “violent,” “sex,” and “stoolies.”
Mr. Portnoy alleges that this piece was published “solely for revenue generation, at the expense of Mr. Portnoy, and, as a direct result of the published piece, that Mr. Portnoy’s image has suffered.” Indeed, the lawsuit alleges that this behavior constitutes “clickbait defamation,” which, under Federal Law is not a cause of action at the present time, however, falls under the general Massachusetts’ laws on defamation.
“Adding insult to injury, the piece contained alleged screenshots and quotations from Mr. Portnoy’s private text and social media messages, in violation of his privacy rights,” the lawsuit continued.
The lawsuit attempts to provide additional context of three of the purported victims, the first known by the pseudonym “Allison.” Mr. Portnoy alleges that any sexual contact was “consensual” and that, “Allison begged him to let her come to his house: “I’m on island with all my friends and really want to see you…would do anything…Let’s hang tonight.” When Mr. Portnoy stated he was unavailable, Allison stated, “Noooo it’s your last week [in Nantucket].”
According to the BI article, “Allison” was purportedly hospitalized due to Mr. Portnoy’s alleged conduct, however, the lawsuit rebuts this allegation by stating that, “she repeatedly contacted Mr. Portnoy in hopes of seeing him again, gave Portnoy her phone number, and encouraged him to continue their relationship. Defendants were in possession of these messages prior to the First Story’s publication, yet Defendants included Allison’s false allegations in the First Story anyway.”
The lawsuit further alleges that, “Mr. Portnoy was not the only person shocked by the allegations of criminal conduct. Indeed, on November 5, 2021, in response to the First Story’s allegations concerning the police report, Nantucket Police spokesman Lt. Angus MacVicar issued a statement to NBC News, clarifying that Portnoy was not under any criminal investigation whatsoever.“
Within the same article, a second woman known by the pseudonym “Madison,” insinuated claims that made it seem to the public that Mr. Portnoy was being accused of sexual assault and forcible rape, according to the suit. The lawsuit likewise dismisses these statements from the article as, “preposterous.”
The allegations concerning “Madison”, per the lawsuit, are “provably false.” “In reality, Portnoy and Madison engaged in consensual sex, and Defendants were fully aware of that fact. Indeed, prior to publishing the First Story, Defendants were or should have been in possession of all of Madison’s communications with Portnoy, as well as her social media posts. Moreover, it is beyond dispute that as of November 11, 2021, when Portnoy publicly disclosed those communications (while taking steps to conceal his accuser’s identity), Defendants have been in possession of Allison’s social media correspondence, yet continue to refuse to retract, correct, update, or in any way modify their defamatory First Story.”
On November 11, 2021, after taking steps to protect the anonymity of the two women who purportedly accused Mr. Portnoy of sexual assault, Mr. Portnoy published redacted versions of “Madison’s” social media posts to all of his social media accounts. Despite having access to this information, the lawsuit alleges that the “Defendants have failed and refused to retract, correct, update, or in any way modify their defamatory First Story.”
Readers of Insider’s First Story were “misled into believing something that Defendants knew prior to publication was plainly false. The false statements concerning Allison and Madison cast Mr. Portnoy in a negative and defamatory light to all readers and have had a disastrous effect on Mr. Portnoy’s personal and professional reputation.”
The lawsuit also notes deliberate efforts by writer defendant Black to “protect herself from online scrutiny. Prior to the First Story’s publication, (defendant) Black’s public Twitter profile contained 4,151 tweets. Just prior to publication, however, Black deleted nearly all her prior tweets, leaving only 132 tweets visible to the public.”
Concurrently, Insider allegedly launched promoted, paid advertisements for its subscription service, using Mr. Portnoy’s photograph in conjunction with a new headline, “Dave Portney [sic], Barstool Sports founder, accused of allegations involving sexual violence and humiliation.”
Insider employees were allegedly contacting Barstool Sports’ advertisers, informing the advertisers of the purported allegations against Mr. Portnoy, and inquiring whether those advertisers would continue to advertise with Barstool Sports. The lawsuit specifically cites that, “On or around November 6, 2021, Insider correspondent Patrick Coffee emailed a Barstool Sports advertiser, stating “I would like to ask whether leadership was aware of this recent story about [Barstool Sports’] founder and, if so, whether there have been any discussions regarding those partnerships and/or ad placements.”
The lawsuit claims that the “conduct was intended to shame Barstool Sports’ advertisers for working with Mr. Portnoy and his company and encourage them to stop doing business with Mr. Portnoy… Due to Defendants’ deliberate interference with Barstool Sports’ business relationships, Barstool Sports has lost no less than $12,000,000 in advertiser revenue since the publication of the defamatory First Story,” the complaint read.
On February 2, 2022, a second piece was published on Businessinsider.com, titled “Three More Women Say Barstool Sports Founder Dave Portnoy Filmed Them Without Asking During Sex.” For search engine optimization and “clickbait” purposes, the Second Story’s URL included the words and phrases “portnoy,” “new women,” “sexual misconduct,” “filming,” “sex,” and “without permission,” the lawsuit alleges. Further, the Second Story, like the First Story, was published behind a paywall, requiring readers to sign up for Insider’s paid subscription service to access it.
In this story, a women referred to as “Kayla” allegedly inferred that Mr. Portnoy’s rough sex amounted to sexual assault, claims which Mr. Portnoy’s complaint refers to as “preposterous, and, critically, belied by the evidence in Defendants’ possession.”
Mr. Portnoy submitted multiple sexually explicit messages by and between “Kayla” and Mr. Portnoy, which his legal team claims debunks the premise and allegations contained in the Second Story. “The allegations concerning Kayla are provably false. In reality, Mr. Portnoy and Kayla engaged in consensual sex, and Defendants were fully aware of that fact. Indeed, in messages that post-date the alleged violent sexual encounters between Kayla and Mr. Portnoy, Kayla repeatedly referred to those past interactions in only positive terms.”
Mr. Portnoy’s counsel allegedly provided Defendants with the “true facts and documentation concerning Kayla, but Insider ignored the information because of their preconceived agenda.”
“In particular, Insider was made aware that critical text messages were available to them, but Insider again did not even request copies of them from Mr. Portnoy or his attorneys. Where Insider did include information from Mr. Portnoy, Insider made an affirmative effort in its presentation to minimize its import,” the lawsuit continues.
The effects on Mr. Portnoy’s reputation have been “pervasive and continuing. As a result of Defendants’ defamatory statements and Mr. Portnoy has suffered significant and irreparable damage to his reputation and profession, as well as embarrassment and humiliation,” according to the complaint.
In Massachusetts, in order to prove defamation, a plaintiff must allege both the falsity of the statement(s) in question and the defendant’s negligence. Furthermore, the plaintiff must allege how the defamatory statement was published. The complaint seemingly meets the pleading requirements under Massachusetts law to be a viable cause of action. Because Portnoy is a public figure, he will have to prove that the allegedly defamatory statements were published with malice, that is, with reckless disregard for the truth.
The complaint does not specify a specific sum of monies sought by Mr. Portnoy, however, based on the potential damages suffered by Mr. Portnoy, it is safe to assume that the damages (if proved by Mr. Portnoy) would be significant.
The Full Complaint is available HERE.