SHIAMILI v. REAL ESTATE GROUP OF NEW YORK INC (2009)

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered January 2, 2009, which denied defendants' motion to dismiss the complaint as barred by the Federal Communications Decency Act of 1996(CDA), unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

This is an action for defamation and unfair competition by disparagement based on comments posted on an internet Web site. It is alleged that defendants “administer and choose” the content for the Web site at issue here, available to and accessed by members of the public interested in New York City real estate, and that they further published numerous false and defamatory statements on the site damaging to plaintiff personally and to his reputation as a businessman, as well as to Ardor.

The CDA provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 USC § 230[c][1] ), and “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section” (§ 230[e] [3] ). Congress thereby granted internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party. Therefore, “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-are barred” (Zeran v. America Online, 129 F.3d 327, 330 [4th Cir.1997], cert. denied 524 U.S. 937, 118 S.Ct. 2341, 141 L.Ed.2d 712 [1997]; see also Chicago Lawyers' Comm. for Civ. Rights Under Law v. Craigslist, 519 F.3d 666 [7th Cir.2008]; Green v. America Online (AOL), 318 F.3d 465, 470-471 [3d Cir.2003], cert. denied 540 U.S. 877, 124 S.Ct. 200, 157 L.Ed.2d 140 [2003] ). The CDA thus treats internet publishers differently than it does corresponding authors in print, television and radio (see Batzel v. Smith, 333 F.3d 1018, 1026-1027 [9th Cir.2003], cert. denied 541 U.S. 1085, 124 S.Ct. 2812, 159 L.Ed.2d 246 [2004] ).

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). “Internet content provider” is defined in the statute as “any person or entity that is responsible, in whole or part, for the creation or development of information provided through the Internet or any other interactive computer service” (§ 230[f][3], emphasis added). Accordingly, an interactive computer service provider remains liable for its own speech (Universal Communication Sys. v. Lycos, 478 F.3d 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 F.3d 1157 [9th Cir.2008] ). However, the “ ‘development of information’ ․ means something more substantial than simply editing portions of an e-mail and selecting material for publication” (Batzel, 333 F.3d at 1031).

Plaintiff's claim is barred by the CDA. The complaint makes no allegation that defendants authored any defamatory statements. It merely alleges that defendants “choose and administer content” that appears on the Web site. This is precisely the kind of function that the CDA immunizes (see e.g. Fair Hous. Council, 521 F.3d at 1173-1174; Batzel, 333 F.3d at 1031). Even accepting as true all of plaintiff's allegations and giving it the benefit of all favorable inferences (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), the complaint does not raise an inference that defendants were “information content providers” within the meaning of the CDA. Plaintiff argues that defendants engaged in a calculated effort to encourage, keep and promote “bad” content on the Web site. However, message board postings do not cease to be data “provided by another information content provider” merely because “the construct and operation” of the Web site might have some influence on the content of the postings (see Universal, 478 F.3d at 422; see also Chicago Lawyers' Comm., 519 F.3d at 671-672; Carafano v. Metrosplash.com, 339 F.3d 1119, 1124-1125 [9th Cir.2003] ).

Where, as here, there is no allegation that defendants authored the defamatory statements, it is not appropriate to permit discovery to determine if a cause of action exists (see Walsh v. Liberty Mut. Ins. Co., 289 A.D.2d 842, 844, 734 N.Y.S.2d 710 [2001]; see also Universal, 478 F.3d at 425-26; cf. Fair Hous. Council, 521 F.3d at 1174).