Internet Service Providers Found Immune over Posted Comments in NY

The NY court's decision will be cited in CDA cases across the country and is likely to limit, but not eliminate, future litigation against ISPs, as future cases are likely to focus on a key aspect of the court's ruling in Shiamili: the extent to which an ISP can be considered a “content provider.”

Background

An action for defamation and unfair competition by disparagement was brought in March 2008 by Christakis Shiamili, the founder and CEO of Ardor Realty, a New York apartment rental and sales company, against The Real Estate Group of New York (TREGNY), a competitor of Ardor's also engaged in selling and renting apartments, as well as TREGNY's principal and his assistant.

According to the complaint, the defendants administered and chose content for a blog dedicated to the New York City real estate industry. In February 2008, a lengthy comment was added to one of the blog's pre-existing discussion threads by a user posting under the pseudonym “Ardor Realty Sucks.” The comment made several allegedly defamatory statements suggesting that the plaintiff mistreated his employees and was racist and anti-Semitic, referring to one of the company's agents as the plaintiff's “token Jew.”

As website administrator, the defendants “promoted” the comment to a stand-alone post, prefacing it with the statement that, “the following story came to us as a ' comment, and we promoted it to a post.” The post was given 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 a traditional image of Jesus with the plaintiff's face and the words, “Chris Shiamili: King of the Token Jews.”

Several of the comments posted by anonymous users in the ensuing discussion thread contained further allegedly defamatory statements, including suggestions that Ardor was in financial trouble and that the plaintiff abused and cheated on his wife. One of the commentators ended by saying “call me a liar and I'll come back here and get REALLY specific.”

The complaint alleged that a defendant, under a pseudonym, responded “liar” in an attempt to encourage the user to say more, but that commentator did not post further. The plaintiff responded by drafting a lengthy comment, which was added to the discussion thread. The plaintiff also requested that the defamatory statements be removed, but was refused.

The complaint alleged that the defamatory statements were made with the intent to injure the plaintiff's reputation, and that the defendants either “made” or published the statements.

Relying on '230 and arguing that the website “functioned as a virtual bulletin board, or open discussion forum,” the defendants moved to dismiss the complaint but the Manhattan Supreme Court denied the motion (see, www.nycourts.gov/reporter/pdfs/2008/2008_33479.pdf).

The Appellate Division, First Department, unanimously reversed and dismissed the complaint (see, www.nycourts.gov/reporter/3dseries/2009/2009_09403.htm). It explained that the CDA protects website operators from liability derived from the exercise of a publisher's traditional editorial functions. Because the complaint did not allege that the defendants authored the defamatory content, but only that they published and edited it, the First Department concluded that the act barred the plaintiff's claim. The case reached the Court of Appeals.

State High Court's Ruling

In Albany, Judge Carmen Beauchamp Ciparick wrote the high court's majority opinion. She explained that '230 represented a conscious decision by Congress to pre-empt state law by excepting Internet publication from the rule that a publisher of defamatory material authored by a third party generally is subject to tort liability.

Citing to a leading decision by the Fourth U.S. Circuit Court of Appeals, Zeran v. Am. Online Inc., 129 F.3d 327 (4th Cir 1997), Ciparick pointed out that Congress enacted the CDA for two public policy purposes. The first goal was to maintain the “robust nature of Internet communication.” Second, Congress was responding to cases such as Stratton Oakmont Inc. v. Prodigy Servs. Co., 1995 N.Y. Misc. LEXIS 229 (Sup. Ct. N.Y. Co. 1995), in which an ISP was found liable for defamatory statements posted by third parties because it had voluntarily screened and edited some offensive content, and so was considered a “publisher.” Congress therefore intended to encourage ISPs to self-police offensive content on their websites by immunizing them from liability as a result thereof.

Ciparick pointed out that federal courts (see, e.g., Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010); Doe v. MySpace Inc., 528 F.3d 413 (5th Cir. 2008)) and state courts (see, e.g., Doe v. Am. Online Inc., 783 So.2d 1010 (Fla. 2001)) around the country ' including courts in New York (see, e.g., Reit v. Yelp! Inc., 29 Misc. 3d 713 (Sup. Ct. N.Y. Co. 2010); Kuersteiner v. Schrader, 2008 N.Y. Misc. LEXIS 10784 (Sup. Ct. N.Y. Co. Oct. 17, 2008) (www.nycourts.gov/reporter/pdfs/2008/2008_33614.pdf)) ' generally have interpreted '230 immunity broadly, so as to effectuate Congress' policy choice not to deter harmful online speech through the route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.

The court then said that it would follow the “national consensus,” which held that a plaintiff's claim against a website operator arising out of allegedly defamatory comments posted to the site by others is barred by the CDA.

The court's analysis could not end with this broad pronouncement because, under the act, ISPs only are entitled to this broad immunity where the content at issue is provided by “another information content provider.” 47 U.S.C. '230(c)(1). Thus, if a defendant ISP is itself the “content provider,” '230 does not shield it from liability.

Moreover, because a content provider is any party “responsible ' in part” for the “creation or development of information,” the court noted that any piece of content can have multiple providers. See, 47 U.S.C. '230(f)(3).

The court acknowledged that it might be difficult in certain cases to determine whether an ISP is also a content provider, given that no consensus has emerged concerning what conduct constitutes “development.” The court noted that the Ninth Circuit has interpreted the term to include a website as a content provider “if it contributes materially to the alleged illegality of the conduct.” Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008); see also, Fed. Trade Commn. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009).

Nevertheless, the court concluded that it need not decide whether to apply the Ninth Circuit's “relatively broad view of 'development'” because even under that analysis, the plaintiff's claim failed.

As an initial matter, the court pointed out, the complaint alleged that the statements were first posted by anonymous users; there was no allegation that the defendants actually had written the statements.

The court next noted out that a website generally is not a “content provider” with respect to comments posted by third-party users. See, e.g., DiMeo v. Max, 248 Fed. Appx. 280 (3d Cir. 2007). Moreover, it rejected the plaintiff's contention that the defendants should be deemed content providers because they created and ran a website that implicitly encouraged users to post negative comments about the New York City real estate industry. As the court observed, creating an open forum for third parties to post content, including negative commentary, was “at the core” of what '230 protects.

The court also pointed out that there was no allegation the defamatory comments were posted in response to any specific invitation for users to bash the plaintiff or Ardor. As the court noted, evidence submitted by the plaintiff in opposition to the defendants' motion to dismiss indicated that the website had been operating for over a year before any of the objectionable comments were posted, and that the posted commentary spanned a range of topics.

Thus, even assuming that solicitation could constitute “development,” this was not a case where the website could be charged with soliciting the allegedly defamatory content at issue. Nor could it be said that the defendants' alleged attempt to provoke further commentary in the discussion thread was actionable, because “none followed.”

The court also rejected the claim that the defendants became “content providers” by virtue of promoting the initial comment to its own post, because that decision was well within a publisher's traditional editorial functions.

Next, the court determined that there were no allegations that posting false and defamatory content was a condition of the website's use, that the site worked with users to develop the posted commentary, or that the website paid researchers to obtain information for the site to disseminate.

Finally, the court acknowledged that the defendants appeared to have been “content providers” with respect to the heading, subheading, and illustration that accompanied the reposting, but it ruled that that content was “not defamatory as a matter of law.”

The complaint did not allege that the heading or subheading were actionable, but only that they “preceded” and “prefaced” the objectionable commentary. The illustration that accompanied the post was alleged to be a “false and defamatory statement[] of fact,” but all it stated was that Shiamili was “King of the Token Jews.”

The court found that this statement could not be considered defamatory because no reasonable reader could conclude that it was conveying facts about the plaintiff.

Simply put, the court concluded that the complaint alleged that defamatory statements were posted on the defendants' website and that some of them were reposted by the defendants. Because the statements were all “provided by another information content provider” and the added headings and illustration did not materially contribute to the statements' defamatory nature, the plaintiff's claims for defamation and unfair competition by disparagement were “clearly barred” by the CDA and were properly dismissed.

The Dissent

Notably, the dissent, in an opinion by Chief Judge Jonathan Lippman, in which Judges Eugene F. Pigott Jr., and Theodore T. Jones joined, would have found that the allegations concerning the website operator's contributions to the defamatory attacks against the plaintiff and Ardor were outside the scope of CDA immunity.

In Lippman's view, if the complaint had alleged that the defendants had merely re-posted the defamatory statements to a more prominent position on the site, it “could plausibly be considered” an exercise of a publisher's traditional editorial functions.

But, Lippman continued, the allegations of the defendants' actions were “not so benign.” Particularly relevant to the analysis, in Lippman's view, was the inflammatory nature of the additions by the defendants, i.e., the headings and illustration, which served, in his opinion, to contribute materially to the illegality of the anonymous poster's statement.

Lippman thus concluded that although he did not disagree with the adoption of a broad approach to immunity, “an interpretation that immunizes a business' complicity in defaming a direct competitor takes us so far afield from the purpose of the Communications Decency Act as to make it unrecognizable.”

Conclusion

It is likely that the crux of the disagreement between the majority and minority opinions in this case will be the issue in future cases involving claims against ISPs and '230 defenses.

The extent to which courts in and outside of New York will deem ISPs in particular cases to be “responsible” for the development of offensive content remains to be seen.

Given the ubiquity of business controlled interactive websites, the issue could have substantial impact on CDA interpretation and on the Internet business community at large.

More than a decade ago, in Lunney v. Prodigy Servs. Co. , 94 N.Y.2d 242 (1999), the New York Court of Appeals declined, as premature, a request to decide whether to adopt a broad interpretation of immunity for Internet Service Providers under '230 of the federal Communications Decency Act (CDA). See, 47 U.S.C. '230(c)(1). (Section 230 provides that “[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.”)

In the intervening years, Internet use has exploded so that it is almost de rigueur for businesses to host opportunities for interactive online activity ' such as blogs, bulletin boards, social media postings ' as an adjunct or aid to their core business of providing services and products. In other words, most businesses now also function as ISPs and need guidance in this area.

Finally, near the end of this past term, a divided Court of Appeals adopted the national consensus and, in Shiamili v. The Real Estate Group of New York Inc. , 2011 N.Y. Slip Op. 5111 (June 14, 2011), concluded that '230 generally immunizes ISPs from liability for third-party content whenever such liability depends on characterizing the ISP as the “publisher or speaker” of objectionable material.

The NY court's decision will be cited in CDA cases across the country and is likely to limit, but not eliminate, future litigation against ISPs, as future cases are likely to focus on a key aspect of the court's ruling in Shiamili: the extent to which an ISP can be considered a “content provider.”

Background

An action for defamation and unfair competition by disparagement was brought in March 2008 by Christakis Shiamili, the founder and CEO of Ardor Realty, a New York apartment rental and sales company, against The Real Estate Group of New York (TREGNY), a competitor of Ardor's also engaged in selling and renting apartments, as well as TREGNY's principal and his assistant.

According to the complaint, the defendants administered and chose content for a blog dedicated to the New York City real estate industry. In February 2008, a lengthy comment was added to one of the blog's pre-existing discussion threads by a user posting under the pseudonym “Ardor Realty Sucks.” The comment made several allegedly defamatory statements suggesting that the plaintiff mistreated his employees and was racist and anti-Semitic, referring to one of the company's agents as the plaintiff's “token Jew.”

As website administrator, the defendants “promoted” the comment to a stand-alone post, prefacing it with the statement that, “the following story came to us as a ' comment, and we promoted it to a post.” The post was given 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 a traditional image of Jesus with the plaintiff's face and the words, “Chris Shiamili: King of the Token Jews.”

Several of the comments posted by anonymous users in the ensuing discussion thread contained further allegedly defamatory statements, including suggestions that Ardor was in financial trouble and that the plaintiff abused and cheated on his wife. One of the commentators ended by saying “call me a liar and I'll come back here and get REALLY specific.”

The complaint alleged that a defendant, under a pseudonym, responded “liar” in an attempt to encourage the user to say more, but that commentator did not post further. The plaintiff responded by drafting a lengthy comment, which was added to the discussion thread. The plaintiff also requested that the defamatory statements be removed, but was refused.

The complaint alleged that the defamatory statements were made with the intent to injure the plaintiff's reputation, and that the defendants either “made” or published the statements.

Relying on '230 and arguing that the website “functioned as a virtual bulletin board, or open discussion forum,” the defendants moved to dismiss the complaint but the Manhattan Supreme Court denied the motion (see, www.nycourts.gov/reporter/pdfs/2008/2008_33479.pdf).

The Appellate Division, First Department, unanimously reversed and dismissed the complaint (see, www.nycourts.gov/reporter/3dseries/2009/2009_09403.htm). It explained that the CDA protects website operators from liability derived from the exercise of a publisher's traditional editorial functions. Because the complaint did not allege that the defendants authored the defamatory content, but only that they published and edited it, the First Department concluded that the act barred the plaintiff's claim. The case reached the Court of Appeals.

State High Court's Ruling

In Albany, Judge Carmen Beauchamp Ciparick wrote the high court's majority opinion. She explained that '230 represented a conscious decision by Congress to pre-empt state law by excepting Internet publication from the rule that a publisher of defamatory material authored by a third party generally is subject to tort liability.

Citing to a leading decision by the Fourth U.S. Circuit Court of Appeals, Zeran v. Am. Online Inc., 129 F.3d 327 (4th Cir 1997), Ciparick pointed out that Congress enacted the CDA for two public policy purposes. The first goal was to maintain the “robust nature of Internet communication.” Second, Congress was responding to cases such as Stratton Oakmont Inc. v. Prodigy Servs. Co., 1995 N.Y. Misc. LEXIS 229 (Sup. Ct. N.Y. Co. 1995), in which an ISP was found liable for defamatory statements posted by third parties because it had voluntarily screened and edited some offensive content, and so was considered a “publisher.” Congress therefore intended to encourage ISPs to self-police offensive content on their websites by immunizing them from liability as a result thereof.

Ciparick pointed out that federal courts ( see , e.g. , Johnson v. Arden , 614 F.3d 785 (8th Cir. 2010); Doe v. MySpace Inc. , 528 F.3d 413 (5th Cir. 2008)) and state courts ( see , e.g. , Doe v. Am. Online Inc. , 783 So.2d 1010 (Fla. 2001)) around the country ' including courts in New York ( see , e.g. , Reit v. Yelp! Inc. , 29 Misc. 3d 713 (Sup. Ct. N.Y. Co. 2010); Kuersteiner v. Schrader, 2008 N.Y. Misc. LEXIS 10784 (Sup. Ct. N.Y. Co. Oct. 17, 2008) (www.nycourts.gov/reporter/pdfs/2008/2008_33614.pdf)) ' generally have interpreted '230 immunity broadly, so as to effectuate Congress' policy choice not to deter harmful online speech through the route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.

The court then said that it would follow the “national consensus,” which held that a plaintiff's claim against a website operator arising out of allegedly defamatory comments posted to the site by others is barred by the CDA.

The court's analysis could not end with this broad pronouncement because, under the act, ISPs only are entitled to this broad immunity where the content at issue is provided by “another information content provider.” 47 U.S.C. '230(c)(1). Thus, if a defendant ISP is itself the “content provider,” '230 does not shield it from liability.

Moreover, because a content provider is any party “responsible ' in part” for the “creation or development of information,” the court noted that any piece of content can have multiple providers. See, 47 U.S.C. '230(f)(3).

The court acknowledged that it might be difficult in certain cases to determine whether an ISP is also a content provider, given that no consensus has emerged concerning what conduct constitutes “development.” The court noted that the Ninth Circuit has interpreted the term to include a website as a content provider “if it contributes materially to the alleged illegality of the conduct.” Fair Housing Council of San Fernando Valley v. Roommates.com, LLC , 521 F.3d 1157 (9th Cir. 2008); see also , Fed. Trade Commn. v. Accusearch Inc. , 570 F.3d 1187 (10th Cir. 2009).

Nevertheless, the court concluded that it need not decide whether to apply the Ninth Circuit's “relatively broad view of 'development'” because even under that analysis, the plaintiff's claim failed.

As an initial matter, the court pointed out, the complaint alleged that the statements were first posted by anonymous users; there was no allegation that the defendants actually had written the statements.

The court next noted out that a website generally is not a “content provider” with respect to comments posted by third-party users. See , e.g. , DiMeo v. Max , 248 Fed. Appx. 280 (3d Cir. 2007). Moreover, it rejected the plaintiff's contention that the defendants should be deemed content providers because they created and ran a website that implicitly encouraged users to post negative comments about the New York City real estate industry. As the court observed, creating an open forum for third parties to post content, including negative commentary, was “at the core” of what '230 protects.

The court also pointed out that there was no allegation the defamatory comments were posted in response to any specific invitation for users to bash the plaintiff or Ardor. As the court noted, evidence submitted by the plaintiff in opposition to the defendants' motion to dismiss indicated that the website had been operating for over a year before any of the objectionable comments were posted, and that the posted commentary spanned a range of topics.

Thus, even assuming that solicitation could constitute “development,” this was not a case where the website could be charged with soliciting the allegedly defamatory content at issue. Nor could it be said that the defendants' alleged attempt to provoke further commentary in the discussion thread was actionable, because “none followed.”

The court also rejected the claim that the defendants became “content providers” by virtue of promoting the initial comment to its own post, because that decision was well within a publisher's traditional editorial functions.

Next, the court determined that there were no allegations that posting false and defamatory content was a condition of the website's use, that the site worked with users to develop the posted commentary, or that the website paid researchers to obtain information for the site to disseminate.

Finally, the court acknowledged that the defendants appeared to have been “content providers” with respect to the heading, subheading, and illustration that accompanied the reposting, but it ruled that that content was “not defamatory as a matter of law.”

The complaint did not allege that the heading or subheading were actionable, but only that they “preceded” and “prefaced” the objectionable commentary. The illustration that accompanied the post was alleged to be a “false and defamatory statement[] of fact,” but all it stated was that Shiamili was “King of the Token Jews.”

The court found that this statement could not be considered defamatory because no reasonable reader could conclude that it was conveying facts about the plaintiff.

Simply put, the court concluded that the complaint alleged that defamatory statements were posted on the defendants' website and that some of them were reposted by the defendants. Because the statements were all “provided by another information content provider” and the added headings and illustration did not materially contribute to the statements' defamatory nature, the plaintiff's claims for defamation and unfair competition by disparagement were “clearly barred” by the CDA and were properly dismissed.

The Dissent

Notably, the dissent, in an opinion by Chief Judge Jonathan Lippman, in which Judges Eugene F. Pigott Jr., and Theodore T. Jones joined, would have found that the allegations concerning the website operator's contributions to the defamatory attacks against the plaintiff and Ardor were outside the scope of CDA immunity.

In Lippman's view, if the complaint had alleged that the defendants had merely re-posted the defamatory statements to a more prominent position on the site, it “could plausibly be considered” an exercise of a publisher's traditional editorial functions.

But, Lippman continued, the allegations of the defendants' actions were “not so benign.” Particularly relevant to the analysis, in Lippman's view, was the inflammatory nature of the additions by the defendants, i.e., the headings and illustration, which served, in his opinion, to contribute materially to the illegality of the anonymous poster's statement.

Lippman thus concluded that although he did not disagree with the adoption of a broad approach to immunity, “an interpretation that immunizes a business' complicity in defaming a direct competitor takes us so far afield from the purpose of the Communications Decency Act as to make it unrecognizable.”

Conclusion

It is likely that the crux of the disagreement between the majority and minority opinions in this case will be the issue in future cases involving claims against ISPs and '230 defenses.

The extent to which courts in and outside of New York will deem ISPs in particular cases to be “responsible” for the development of offensive content remains to be seen.

Given the ubiquity of business controlled interactive websites, the issue could have substantial impact on CDA interpretation and on the Internet business community at large.