Advertising Law Alerts

July 21st, 2011

Blogger Could Not Be Sued By Competitor for Anonymous User Posts

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 defense.

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][1]), 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.

If you have any questions about this case, please contact Terri J. Seligman at (212) 826 5580 or tseligman@fkks.com, Brian Murphy at (212) 826 5577 or bmurphy@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.