New York's highest court has held that a plaintiff's claim against a blog operator
arising out of allegedly defamatory comments posted to the blog was
barred by the Communications Decency Act ("CDA"). It was
the first time the New York Court of Appeals has ruled on a CDA
In Shiamili v. The Real Estate Group of New York, Inc.,
the plaintiff, founder and CEO of Ardor Realty Corp.
("Ardor"), sued its competitor Real Estate Group of New
York, Inc. ("REGNY"), and REGNY's principal and an
employee, alleging that certain REGNY blog posts were defamatory.
Specifically, an anonymous visitor to the blog, operating under the
pseudonym "Ardor Realty Sucks," posted several allegedly
defamatory statements suggesting that plaintiff had mistreated his
employees, was anti-Semitic, and had referred to one of the
company's agents as "his token Jew." The defendant
later moved the comment to a stand-alone post, prefacing it with
the following statement: "the following story came to us as a
comment and we promoted it to a post." The defendant also
added the heading, "Ardor Realty and Those People," and
the subheading, "and now it's time for your weekly dose of
hate, brought to you unedited, once again, by 'Ardor Realty
Sucks' and for the record, we are so not afraid." The post
was accompanied by an image of Jesus Christ with plaintiff's
face and the words, "Chris Shiamili: King of the Token
Jews." Allegedly, several of the comments posted by anonymous
users in the discussion thread contained further defamatory
statements and the defendant posted comments under a pseudonym
encouraging further comments. Plaintiff asked defendants to remove
the statements, but defendants refused.
Plaintiff brought an action alleging that the defamatory
statements were made with the intent to injure his reputation, and
that defendants either "made" or published the
statements. Defendants moved to dismiss the Complaint for failure
to state a cause of action. The trial court denied the motion to
dismiss, finding that Section 230(c)(1) of the CDA (47 USC §
230[c]), did not require dismissal of plaintiff's claims
since "information as to defendants' role, if any, in
authoring or developing the content of the Web site is exclusively
within their possession" and discovery had not yet occurred.
Section 230 of the CDA carves out an exception to the general rule
that a publisher of defamatory material authored by a third-party
is generally subject to tort liability. Specifically, Section 230
states, in relevant part, "[n]o 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." The Appellate Division unanimously reversed and
granted the motion to dismiss under the CDA.
In a close decision, the New York Court of Appeals agreed with
the Appellate Division, holding that the CDA bars "lawsuits
seeking to hold a service provider [here, a blogger] liable for its
exercise of a publisher's traditional editorial
functions—such as deciding whether to publish, withdraw,
postpone or alter content." The Court noted that service
providers are entitled to broad immunity so long as the content at
issue is provided by "another information content
provider." The Court rejected plaintiff's contention that
defendants should be deemed content providers because they created
and ran a Web site which encouraged users to post negative comments
about the New York City real estate industry. Similarly, defendants
did not become "content providers" by virtue of moving
one of the user-generated comments to its own posts, because
"reposting content created and initially posted by a third
party is well-within a publisher's traditional editorial
functions." Finally, the Court found that while defendants
appear to have been "content providers" with respect to
the heading, subheading and illustration that accompanied the
reposting, that content was not defamatory as a matter of law.
This case involved many of the same facts at issue in other CDA
cases, that is, anonymous defamatory posts that a Web site operator
refuses to remove. However, the fact that the Web site operator
here was a competitor of the plaintiff's, who highlighted, and
added content to, the defamatory posts, could have motivated the
court to carve out some boundaries for the broad immunity afforded
by the CDA. The court declined to do so, however, leaving the
CDA's protections for Web site operators intact.
This alert provides general coverage of its subject area. We
provide it with the understanding that Frankfurt Kurnit Klein &
Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
omission. Our attorneys practice law only in jurisdictions in which
they are properly authorized to do so. We do not seek to represent
clients in other jurisdictions.
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