Lead Opinion
OPINION OF THE COURT
On this аppeal, we consider for the first time whether a plaintiffs claim against a Web site operator arising out of allegedly defamatory comments posted to the Web site is barred by the Communications Decency Act (CDA), codified at 47 USC § 230. We conclude that it is, and that the defendants’ motion to dismiss the complaint was properly granted.
As stated in the complaint, plaintiff Christakis Shiamili is the founder and CEO of Ardor Realty Corp. (Ardor), a New York apartment rental and sales company. In March 2008, Shiamili filed this action for defаmation and unfair competition by disparagement against defendants The Real Estate Group of New York, Inc. (TREGNY), Daniel Baum, and Ryan McCann. TREGNY is a competitor of Ardor’s, also engaged in selling and renting New York City apartments; Baum is TREGNY’s principal and chief operating officer; and McCann is Baum’s assistant.
These defendants allegedly “administer and choose content for” a publicly accessible Web site — a “blog” — dedicated to the
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 аnd that Shiamili 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 alleges that McCann, under a pseudonym, responded, “liar” in an attempt to encourage the user to say more, but that commentator did not post further. Shiamili responded by drafting a lengthy comment, which was added to the discussion thread. Shiamili also contacted McCann and requested that he remove the defamatory statements, but McCann rеfused to do so.
Shiamili brought this action, alleging in his complaint that the defamatory statements were made with the intent to injure his reputation, and that defendants either “made” or published the statements. In addition to damages, the complaint requests injunctive relief requiring defendants to stop “publication of any and all defamatory statements concerning Shiamili and Ardor” and “any further disparagement.”
Supreme Court denied the motion to dismiss. As relevant here, it found that section 230 (c) (1) of the CDA (47 USC § 230 [c] [1]) did not require dismissal of plaintiffs claims, since “information as to defendants’ role, if any, in authoring or developing the content of the website is exclusively within their possession” and discovery had not yet occurred (
The Appellate Division unanimously reversed, granted the motion to dismiss, and dismissed the complaint. The court explained that the CDA protects Web site operators from liability derived from the exercise of a publisher’s traditional editorial functions (see Shiamili v Real Estate Group of N.Y., Inc.,
Although a publisher of defamatory material authored by a third party is generally subject to tort liability, Congress has carved out an exception for Internet publication by enacting section 230 of the CDA, passed as part of the Telecommunications Act of 1996 (Pub L 104-104, 110 US Stat 56 [104th Cong, 2d Sess, Feb. 8, 1996]). Section 230 establishes that “[n]o provider or user of an interactive computer service shall bе treated as the publisher or speaker of any information provided by another information content provider” (47 USC § 230 [c] [1]), and it preempts any state law — including imposition of tort liability — inconsistent with its protections (see 47 USC § 230 [e] [3]). A defendant is therefore immune from state law liability if (1) it is a “provider or user of an interactive computer service”; (2) the complaint seeks to hold the defendant liable as a “publisher or speaker”; and (3) the action is based on “information provided by another information content prоvider” (47
In passing section 230, Congress acknowledged that “[t]he Internet . . . offer [s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” (47 USC § 230 [a] [3]), and that it has “flourished, to the benefit of all Americans, with a minimum of government regulation” (47 USC § 230 [a] [4]). Further, “[i]t is the policy of the United States ... to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation” (47 USC § 230 [b] [2]). As the Fourth Circuit explained in the seminal case of Zeran v America Online, Inc. (
“Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers fоr the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.”
Additionally, section 230 was designed “to encourage service providers to self-regulate the dissemination of offensive material over their services” (id. at 331). In this respect, the statute was a response to сases such as Stratton Oakmont, Inc. v Prodigy Servs. Co. (
Both state and federal courts around the country have “generally interpreted Section 230 immunity broadly, so as to effectuate Congress’s ‘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’ ” (Universal Communication Sys.,
We have not yet had occasion to address thе scope of section 230’s protections. In Lunney v Prodigy Servs. Co. (
Consistent with this view, we read section 230 to bar “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content” (Zeran,
Service providers are only entitled to this broad immunity, however, where the content at issue is provided by “another information content prоvider” (47 USC § 230 [c] [1]). It follows that if a defendant service provider is itself the “content provider,” it is not shielded from liability (see e.g. Nemet Chevrolet, Ltd. v Consumeraffairs.com, Inc.,
It may be difficult in certain cases to determine whether a service provider is also a content рrovider, particularly since the definition of “content provider” is so elastic, and no consensus has emerged concerning what conduct constitutes “development”:
“[T]he broadest sense of the term ‘develop’ could include the functions of an ordinary search engine— indeed, just about any function performed by a website. But to read the term so broadly would defeatthe purposes of section 230 by swallowing up every bit of the immunity that the section otherwise provides. At the same time, reading the excеption for co-developers as applying only to content that originates entirely with the website . . . ignores the words ‘development ... in part’ in the statutory passage” (Roommates.Com, 521 F3d at 1167 ).
The Ninth’s Circuit’s approach, which Shiamili asks us to adopt, is to “interpret the term ‘development’ as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness” (id. at 1167-1168). This view, which has been cited with approval by the Tenth Circuit (see Accusearch Inc.,
In the case before us, we need not decide whether to apply the Ninth Circuit’s relatively broad view of “development” since, even under that court’s analysis, Shiamili’s claim fails. Although the statements at issue are unquestionably offensive and obnoxious, defendants are nonetheless shielded from liability by section 230. Shiamili does not dispute that defendants, as alleged Web site operators, are providers of an “interactive computer service” under section 230 (see Roommates.Com,
As an initial matter, the complaint alleges that the defamatory statements were first posted by anonymous users; there is no allegation that defendants actually authored the statements. A Web site is generally not a “content provider” with respect to comments posted by third-party users (see DiMeo v Max,
Moreover, there is no allegation that the defamatory comments were posted in response to any specific invitation for users to bash Shiamili or Ardor (cf. Doctor’s Assoc., Inc. v QIP Holder LLC,
The defendants did not become “content providers” by virtue of moving one of the comments to its own post. Reposting content created and initially posted by a third party is well within “a publisher’s traditional editorial functions” (Zeran,
Shiamili argues that this case fits within a line of federal decisions in which courts have found that “even if the data are supplied by third parties, a website operator may still contribute to the content’s illegality and thus be liable as a developer” of the content (Roommates.Com,
Defendants appear to have been “content providers” with respect to the heading, subheading, and illustration that accompanied the reposting. That content, however, is not defamatory as a matter of law. The complaint does not allege that the heading and subheading are actionable, but only that they “preceded” and “prefaced” the objectionable commentary. The illustration that accompanied the post is alleged to be a “false and defamatory statement[ ] of fact,” but all it states is that Shiamili is “Kang of the Token Jews.” This is not a defamatory statement, since no “reasonable reader could have concluded that [it was] conveying facts about the plaintiff’ (Gross v New York Times Co.,
Simply put, the complaint alleges that defamatory statements were posted on defendants’ Web site, and some of them were re-posted by the defendants. These statements are all “information provided by another information content provider” (47 USC § 230 [c] [1]). Defendants’ added headings and illustration do not materially contribute to the defamatory nature of thе third-party statements. Shiamili has therefore failed to state a viable cause of action against defendants, as his claims for defamation and unfair competition by disparagement are clearly barred by the CDA and were properly dismissed below.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Notes
. Defendants maintain that only McCann administers the Web site. On this motion to dismiss, we accept plaintiffs allegation that “all McCann’s actions . . . were taken with the knowledge of or acquiescence by” the other defendants.
. Section 230 defines an “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server” (47 USC § 230 [f] [2]).
Dissenting Opinion
(dissenting). It is unfortunate that in this, our first case interpreting the Communications Decency Act (CDA) (47 USC § 230), we have shielded defendants from the allegation that they abused their power as Web site publishers to promote and amplify defamation targeted at а business competitor. Even in the muted form in which the majority presents them, the allegations concerning the Web site operator’s material contributions to the scurrilous defamatory attacks against Mr. Shiamili and Ardor Realty are sufficiently stated and are outside the scope of CDA immunity.
Plaintiff alleged that defendants published defamatory content, which claimed, in vulgar terms, that plaintiff was a racist and anti-Semite who mistreated his employees, could not retain real estate agents, failed to pay office bills, beat up his wife, and used his office space to commit adultery with prostitutes.
If the complaint alleged that defendants merely reposted these outrageous statеments to a more prominent position on the
According to the complaint, defendants not only moved the defamatory comments to an independent post entitled “Ardor Realty and Those People,” but embellished the comment thread by attaching a large, doctored photograph of plaintiff depicted as Jesus Christ, with the heading: “Chris Shiamili: King of the Token Jews.” The defamatory statements were “preceded by an editor’s note, on informаtion and belief written and published by [defendant] McCann, that ‘the following story came to us as a long . . . comment, and we promoted it to a post.’ ” McCann also allegedly introduced the post with the statements: “ ‘[A]nd now it’s time for your weekly dose of hate’ and ‘for the record, we are so. not. afraid.’ ”
The majority is anxious to trivialize the religiously charged illustration as “obviously satirical” and “not a defamatory statement, since no ‘reasonable reader could have concluded ... [it was] conveying facts about thе plaintiff ” (majority op at 292 [citation omitted]). Of course, a reasonable reader would not have gathered from this digitally edited photograph that defendants were asserting that plaintiff was in fact Jesus Christ or the king of “token” Jewish real estate agents. But a reasonable reader, viewing the heading and illustration, might very well have concluded that the site editor was endorsing the truth of the appended facts, which asserted that plaintiff was an anti-Semite who employed a single Jewish realtor in order to maintain business with Jewish landlords. Even setting aside the preface referring to the “weekly dose of hate” and the allegations of defendants’ efforts to instigate additional attacks against plaintiff’s character and business, defendants’ attachment of this illustration, if proven, should alone defeat their immunity under the CDA. As the majority concedes, it is well established in federal law that “a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct” (Fair Hous. Council of San Fernando Val. v Roomates.Com, LLC (
Like the majority, I accept the “national consensus” on statutory immunity under the CDA (majority op at 288). However, I see no basis in the record for the majority’s confident conclusion that defendants served only as a passive conduit of this defamatory matеrial, and are therefore immune as a matter of law. As the majority notes, section 230 of the Communications Decency Act, titled “Protection for private blocking and screening of offensive material,” was prompted by the undesirable result in Stratton Oakmont, Inc. v Prodigy Servs. Co. (
Concerned that cases like Stratton Oakmont, Inc. would discourage providers from censoring offensive content on their own sites, Congress enacted section 230, in part, to insulate providers from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally prоtected” (47 USC § 230 [c] [2] [A]). Both houses of Congress stressed that “[o]ne of the specific purposes of this section is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material” (HR Rep 104-458, 104th Cong, 2d Sess, at 194; S Rep 104-230, 104th Cong, 2d Sess, at 194 [containing same quote]).
While I do not dispute the adoption of a broad approach to immunity for on-line service providers under the CDA, an interpretation that immunizes a business’s complicity in defaming a direct competitor takes us so far afield from the purpose of the CDA as to make it unrecognizable. Dismissing this action on the pleadings is not required by the letter of the law and does not honor its spirit.
Order affirmed, with costs.
We must deem the allegations of the complaint to be true in considering defendants’ CPLR 3211 (a) (7) motion to dismiss.