The Court of Appeals recently determined that defamatory postings to a blog do not create liability for the blog or its host. Ardor Realty Corp., headed by Christakis Shiamili, and the Real Estate Group of New York, Inc. (“REG”), controlled by Daniel Baum and Ryan McCann, competed in selling and renting apartments in New York City. REG operated a website and blog dedicated to the New York City real estate market. An anonymous poster to that blog made defamatory comments about Shiamili. After McCann highlighted that comment, additional defamatory comments were posted anonymously. Shiamili posted in his defense and requested that REG remove the post and comments. When REG refused, Shiamili filed suit, alleging not that REG posted the statements, but that it highlighted and hosted them.
The court’s threshold issue in Shiamili v. The Real Estate Group of New York, Inc., concerned the applicability of §230 of the Federal Communications Decency Act (the “Act”) to these facts. Although defamatory statements are actionable, a website or blog that simply allows others to post entries or comments, is immune from liability for those comments. The Act does this by determining that the host or blog is not “the publisher or speaker” of the defamatory statements. The Act also preempts any State from finding a host or blog liable. The court held that Congress determined that the Act balances the interests of free speech and defamatory speech by immunizing those that simply act as passive conduits for that speech, even if the speech is screened or modestly edited, and even if the blog or host highlights a post or comment, so long as it does not contribute materially to the post.
Applying this to the facts here, the court refused to hold REG liable, rejecting liability based on REG’s allowing open, anonymous posts or for highlighting the defamatory post.
Judge Lippman, in his dissent, would have grounded liability against REG in its decision to highlight the post and to amplify its comments, thereby endorsing the contents of the post. These actions amounted to material contribution to the post.