New York’s Highest Court Interpets 47 U.S.C. § 230 Broadly

The case is Shiamili v. The Real Estate Group of New York, Inc., decided today. Defendants, who are apparently real estate brokers, ran a blog. Several people posted pseudonymous comments critical of Shiamili, another real estate broker. Defendants left those comments up, and even reposted one of the comments as a separate post, with a heading and an illustration provided by defendants. Shiamili sued the defendants.

The court held that the defendants were protected by 47 U.S.C. § 230, which generally immunizes Internet content providers from being held liable for posts by other service providers. And the court held this even though the defendants deliberately reproduced one of the comments in a separate post (paragraph break added):

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, 129 F3d at 330). Indeed, this case is analogous to others in which service providers have been protected by section 230 after reposting or otherwise disseminating false information supplied by a third party. To cite only a few examples, in Ben Ezra, Weinstein, and Co., Inc. v Am. Online Inc. (206 F3d 980 [10th Cir 2000]) the defendant service provider would publish updated securities information supplied by third parties and derived from a variety of stock exchanges and markets. Plaintiff sued the provider for publishing inaccurate information concerning the price and share volume of plaintiff’s stock. The Tenth Circuit found that the inaccurate information was “created” by third parties, and the web provider was not “responsible, in whole or in part, for [its] creation and development” (id. at 986).

The Ninth Circuit reached the same result in Batzel (333 F3d at 1018), cited with approval in (521 F3d at 1170). There, the editor of an email newsletter received a tip and incorporated it into the newsletter, adding a headnote. The tip proved false, but the Ninth Circuit found that section 230 protected the editor from being sued for libel because he had been “merely editing portions of an e mail and selecting material for publication” (Batzel, 333 F3d at 1031). Similarly, in DiMeo (248 Fed Appx at 281) — a case quite like this one — the plaintiff sued for defamation based on comments left by anonymous users on defendant’s website, where defendant could “select which posts to publish and edit[ed] their content” (DiMeo v Max, 433 F Supp 2d 523, 530 [ED Pa 2006]). The Third Circuit found that “the website posts … constitute information furnished by third party information content providers” (248 Fed Appx at 282).

The judges agreed that 47 U.S.C. § 230; didn’t immunize defendants for “the heading, sub-heading, and illustration that accompanied the reposting” — they themselves created that material. But the judges split 4-3 on whether those particular items were defamatory; the majority say they weren’t, and the dissenters said they were.