Can An Internet Service Provider Be Held Liable For Defamatory Statements Posted On Its Website Under New York Law? December 31, 2009

In Shiamili v. Real Estate Group of NY, Inc., an opinion issued by New York’s Appellate Division, First Department (which covers both New York and Bronx Counties), answered this question with an unequivocal ‘no’ – the internet services provider (or “interactive computer service) cannot be held liable for defamation (or unfair competition) unless the internet services provider acts in some editorial or publishing capacity “such as deciding whether to publish, withdraw, postpone or alter content.”

This rule is derived from the Federal Communications Decency Act of 1996 (CDA), which immunizes internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party, and thus treats internet publishers differently than it does corresponding authors in print, television and radio (see Batzel v Smith, 333 F3d 1018, 1026-1027 [9th Cir 2003], cert denied 541 US 1085 [2004]).

As noted by the Shiamili court, there is one small caveat to this rule, however: the immunity provided by the CDA applies only where the information that forms the basis of the state law claim has been provided “by another information content provider” (47 USC § 230[c][1], emphasis added). In accordance with this caveat to the general rule, an interactive computer service provider remains liable for its own speech (Universal Communication Sys. v Lycos, 478 F3d 413, 419-420 [1st Cir 2007]), or for its material contribution to the content of a third party’s statement (see Fair Hous. Council of San Fernando Val. v Roommates.com, 521 F3d 1157 [9th Cir 2008]). On the other hand, the ” development of information’ . . . means something more substantial than simply editing portions of an e-mail and selecting material for publication.”

In sum, an internet services provider cannot be held liable for the content published on its site unless it had an active role in determining the specific content that was published.

Jonathan Cooper is a New York Business Litigation and New York Commercial Litigation Lawyer with a focus on New York breach of contract and New York business fraud claims before the Nassau, Queens, Brooklyn, Bronx, Westchester and Suffolk County courts of New York State. For more information, feel free to contact his Long Island office at 516-791-5700.

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