Federal law bars libel suit against New York bloggers

Aaron Mackey | Libel | Feature | June 15, 2011

A federal law protects website publishers who add material to defamatory posts and attempt to elicit greater discussion on the topic, New York’s highest court ruled earlier this week.

In a 4-3 decision on Tuesday, the New York Court of Appeals upheld the dismissal of a defamation suit brought by the owner of a New York City apartment rental and sales company against competitors who also operate a blog that chronicles the city’s real estate industry.

Christakis Shiamili filed suit against The Real Estate Group of New York Inc. after an anonymous comment critical of Shiamili and his company, Ardor Realty Corp., appeared on the blog operated by officials working at The Real Estate Group.

According to the lawsuit, an employee from The Real Estate Group, who was also one of the blog’s administrators, took a comment that included allegations that Shiamili was racist and anti-Semitic, and turned it into a stand-alone blog post.

The blogger then added a headline and a photo of Jesus Christ with Shiamili’s face superimposed on the image along with a caption that read “Chris Shiamili: King of the Token Jews,” according to the suit.

The post generated a series of comments critical of Shiamili, including suggestions that Shiamili’s company was in financial trouble, and that he cheated on and abused his wife.

At one point, the employee who turned the comment into a full post logged into the comments anonymously and sought a response from another poster who claimed to have specific details about Shiamili’s activities, according to the suit. The commentator never responded to the inquiry.

In affirming a lower court’s dismissal of the case, the majority opinion ruled that the federal Communications Decency Act prevented Shiamili from suing the operators of the blog because their site merely hosted the defamatory material.

Section 230 of the Communications Decency Act was passed to shield website operators from liability for comments and materials posted to their sites by others. The law is a marked exception to laws governing traditional offline publications, such as newspapers, where the publisher can be held liable for any content within the publication. (The Reporters Committee publishes a digital journalism guide outlining how the law applies to online publications.)

“Creating an open forum for third parties to post content -- including negative commentary -- is at the core of what (the Communications Decency Act) protects,” the majority opinion said. “The defendants did not become ‘content providers’ by virtue of moving one of the comments to its own post.”

But three judges of New York’s highest court disagreed, arguing in a dissenting opinion that the website’s operators did more than merely publish or edit the defamatory posting.

By adding the headline, photo and caption, and later encouraging others to provide more potentially defamatory comments about Shiamili, the defendants were contributing to the defamation, placing them outside the scope of the federal law’s protections, the dissent said.

The majority’s decision creates an interpretation of the federal law “that immunizes a business’s complicity in defaming a direct competitor,” Chief Judge Jonathan Lippman said in the dissenting opinion.

“I see no basis in the record for the majority’s confident conclusion that defendants served only as a passive conduit of this defamatory material,” he said.