New York Court of Appeals Adopts Broad View of Section 230 Immunity- Court dismisses defamation claim based on user's post and host's added content

by Davis Wright Tremaine LLP
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In its first decision addressing Section 230 of the Communications Decency Act, the New York Court of Appeals (New York’s highest court) has ruled that Section 230 bars tort claims against a website operator based on user-generated content. Shiamili v. The Real Estate Group of New York, Inc. No surprise there—but the court’s split (4-3) decision sets out an expansive view of the protection offered by Section 230, immunizing the website operator from liability even though the content in question combined a user’s post and the host’s own added embellishments.

Plaintiff Christakis Shiamili, CEO of Ardor Realty Corp. (Ardor), had brought a defamation suit against a competing company, The Real Estate Group of New York, its principal and his assistant (collectively TREGNY), who administered a blog about the New York real estate industry. A user of the TREGNY blog (who signed on as “Ardor Realty Sucks”) posted a comment to a discussion thread on the blog, making several allegedly defamatory statements suggesting that Shiamili mistreated his employees and was racist and anti-semitic.

TREGNY allegedly: (i) moved the comment from the discussion thread 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’”; (ii) added a headline, “Ardor Realty and Those People,” and a sub-heading, “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.”; (iii) added an illustration of Jesus Christ with Shiamili’s face and the caption “Chris Shiamili: King of the Token Jews”; and (iv) pseudonymously egged on another commenter to provide additional dirt on Shiamili.

Despite these contributions by TREGNY, the Court of Appeals affirmed the dismissal of Shiamili’s defamation suit based on the immunity provided by Section 230.

Section 230 states: “No 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.” 47 U.S.C. § 230(c)(1). There is no serious question that the operator of a web site like this is the provider of an interactive computer service under the statute, or that a libel claim against a web site based on a third-party user’s comment is just the sort of claim which is typically barred by Section 230. The question here, however, was whether TREGNY materially contributed to the content—by highlighting it, adding prefatory text, headlines and an illustration—such that the content was no longer merely “information provided by another information content provider” but rather information co-created by “Ardor Realty Sucks” and TREGNY—thereby depriving TREGNY of Section 230 immunity.

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