According to the lawsuit obtained by PEOPLE, Chmerkovskiy shared a meme of the girl, which includes a photo of her drinking a soda along with the text, “Letting your kid become obese should be considered child abuse.”
The lawsuit claims the photo was taken in June 2008 while the girl was at a baseball game without the family’s knowledge. The photographer allegedly posted the photo soon after on his Flickr account with the text, “Everything that’s wrong with America.”
The photo eventually became a meme in 2014, and the lawsuit claims that the Dancing with the Stars pro, 29, helped it go viral when he allegedly shared it on his Facebook page in January. The lawsuit says the meme also appeared on cbsnews.com, and is naming CBS as a defendant, as well as the original photographer.
“Although we have not yet been served a copy of the complaint, we have removed the photo in question from a gallery that was published in 2011,” a rep for CBS told PEOPLE in a statement.
The family says it became aware of the meme when the girl’s sister saw it on Chmerkovskiy’s Facebook page.
Chmerkovskiy, who was unaware the girl had Down syndrome, removed the meme three days after posting it on his own accord.
The post sparked a conversation on his Facebook page, with the star writing in response to one of his follower’s comments that his own “mother is heavy set” and he considers her “the most beautiful woman in the world.”
“I have no desire to discriminate or shame, I just think people should have a little more knowledge and take more responsibility when it comes to their children’s diet,” he wrote. “That’s all. It’s not about what I find beautiful or not, it’s about what’s healthy or not.”
The family is suing for defamation, emotional distress and invasion of privacy and is seeking $6 million each from Chmerkovskiy and CBS, as well as $600,000 from the photographer.