FROM THE NYSBA LAW DIGEST

"CLOSELY DIVIDED COURT UPHOLDS IMMUNITY FOR INTERNET PROVIDER DESPITE ITS ARGUABLY ACTIVE ROLE IN ENHANCING DEFAMATORY MATERIAL

Whether a website provider can be held to account, such as with tort liability, for the defamatory content of a posting it has allowed on its site is a question that has occupied and beset the courts, both federal and state, around the country. The New York Court of Appeals had only a brief involvement with the subject. That was in its 1999 Lunney decision (Digest 480), which we reported under the caption “So Far So Good for Internet Providers: By Analogy to Telephone Companies, They’re Not Liable for the Content of Messages”.

But now we’re in 2011, a dozen years later, and there’s been a huge growth in the use of the Internet since then, and a concomitant surge of issues generated by the loud clash between our law’s devotion to free speech on the one hand and its still existent – but seemingly diminishing – protections for the defamed on the other.

The defamation laws are designed to protect individuals from false, malicious, and damaging allegations, and the web is an irresistible place for the defamer to place those allegations. It’s a grand expedient whereby a defamer can reach the public. Caught in the middle is the website provider. Can it be held liable, and cast in tort damages, for letting a defamation on?

The gist of the law as now applied by the Court of Appeals in Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281, .... N.Y.S.2d .... (June 14, 2011; 4-3 decision), is that it can’t, as long as it essentially does no more than let the material on. But what happens if the site is “interactive” (as this one was) and itself does some rearranging, or adjustment, or editing of the material tendered to it, and in such a way as to suggest that the site itself is on the side of the alleged defamer?

What happens is that the issue explodes, and the courts divide, including the New York Court of Appeals in Shiamili, in which the four-judge majority, in an opinion by Judge Ciparick, still finds the website immune, while a three-judge dissent, written by Chief Judge Lippman, sees the line of protection passed. Based on the plaintiff’s (P’s) allegations in the complaint, which have to be taken as true for the purpose of disposing of this motion to dismiss at the threshold, the dissent would uphold P’s suit.

The area involved was rentals and sales in the New York real estate market. P owned a company in business in that market. He claims that the defendants defamed him with accusations of anti-semitism and other damaging allegations, and included among the defendants not just the individuals claimed to be at fault, but also a company that operated the website, or “blog”, which was aimed at the same business market. Is the website liable?

It wouldn’t be if it just posted the matter tendered. But P says – and the dissent agrees – that it did much more than that. It edited the material, placed it under a heading of “weekly dose of hate”, and added, among other things, a “traditional image” of Jesus Christ with P’s face and captioned it “King of the Token Jews” – a reference to the defendants’ claim that P kept one “token” Jew on his staff to placate Jewish landlords whose business they sought.

The Court still holds the action against the website company barred by the federal Communications Decency Act (47 U.S.C. § 230), which it finds to have been enacted in response to a New York lower court case that took a stricter view of such website tampering and sustained charges against the site. It’s the publisher of the defamation who is liable for it, and the Act states that no provider of an “interactive computer service” shall be considered a publisher “of any information provided by another”.

Quoting from the Fourth Circuit’s 1997 decision in Zeran v. Am. Online, Inc., 129 F.3d 327, which it terms a “seminal” case in this field, the Court sees the website’s acts here in ­Shiamili as merely the “exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content”. It then quotes from yet another federal case, Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998), which holds that the statute’s immunity extends even where the service provider takes an “aggressive” part in making available content that was prepared by others.

The majority view here in Shiamili dismisses the image as merely “satirical”. The dissent says that this amounts to a trivializing of the site editor’s acts, which it sees as “endorsing the truth” of the accusations against P, and even as an effort “to instigate additional attacks” against P. The dissent says that what the website did here was help “develop” the wrongful allegations, which is conduct the dissent sees as excepted from the immunity the federal act would otherwise provide."