Comments on NY Highest Court Ruling on 47 USC 230–Shiamili v. Real Estate Group [Catch up post]

By Eric Goldman

Shiamili v. The Real Estate Group of New York, Inc., 2011 WL 2313818 (N.Y. App Ct. June 14, 2011). My blog post on the intermediate appellate ruling.

[I was traveling in mid-June and a few interesting rulings fell through the cracks. This is a catch-up post.]

Shiamili founded Ardor, which competes with the Real Estate Group in the apartment rental brokerage business. A pseudonymous user posted a comment to REG’s blog allegedly defaming Shiamili. The blog administrator elevated the comment into a full blog post by republishing it with some introductory remarks. This sparked further allegedly defamatory comments to the post. The blog administrator allegedly also responded to one of those comments to try to elicit further details about Shiamili’s deficiencies.

Based on this recitation, this looks like an easy 47 USC 230 dismissal. The plaintiffs made it seem even easier by alleging the defendants’ tortious conduct was to “administer and choose content for” the blog. Administering and choosing UGC is exactly what 47 USC 230 protects, so this was a relatively uninspired effort to bypass the immunity.

The court summarizes the state of play in 47 USC 230 jurisprudence and distills a conclusion:

Today, we follow what may fairly be called the national consensus…and read section 230 as generally immunizing internet service providers from liability for third-party content wherever such liability depends on characterizing the provider as a ‘publisher or speaker’ of objectionable material

I’m not sure how this broad philosophy statement advances the ball beyond the statute’s plain text, and the last 3 words are odd. The immunity applies irrespective of whether or not “objectionable” material is involved. The court does explain that the immunity applies equally to both neutral and selective publishers. The court punts on the Roommates.com’s discussion about “development,” saying that the plaintiff loses even under the more plaintiff-friendly reading. (Count this opinion as yet another citation of Roommates.com for the defense). The court says:

1) “Creating an open forum for third-parties to post content — including negative commentary — is at the core of what section 230 protects”

2) “there is no allegation that the defamatory comments were posted in response to any specific invitation for users to bash Shiamili or Ardor”

3) elevating the comment to its own blog post didn’t make the blogger a content provider of the comment’s content. The court doesn’t cite the email forwarding cases, but this ruling is completely consistent with them (see, e.g., Phan v. Pham).

The court distinguishes Roommates.com and Accusearch because the site did not require users to do anything illegal.

Finally, the court says the blogger is the content provider (and thus not insulated by 47 USC 230) for his introductory remarks, the blog post title and an accompanying drawing, but those three elements weren’t defamatory as a matter of law.

There was a surprisingly strong dissent (and a 4-3 split among the judges), concluding that “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.” This is at least the second time a state’s highest court has split 4-3 on a 230 case–the old Doe v. AOL case in Florida is the other that comes to mind. Perhaps this difficulty agreeing on 47 USC 230′s application makes sense for state courts that don’t see 47 USC 230 cases regularly and might be surprised by the counter-intuitive breadth of Congress’ immunity.