New York’s highest court has considered whether the Communications Decency Act (“CDA”), a federal law, protected a broker from liability over comments posted by a third party on its website.
The Real Estate Group of New York, Inc. (“Website Operator”) is a real estate brokerage firm engaged in the selling and renting of apartments. Christakis Shiamili (“Shiamili”) is the chief executive of Ardor Realty Corp. (“Ardor”), a real estate brokerage firm that is a competitor of the Website Operator.
The Website Operator has a publically available blog on its website about the local real estate industry. In February 2008, a posting made by someone using the name “Ardor Realty Sucks” contained allegedly defamatory statements about Shiamili, accusing him of being racist and anti-Semitic. One of the Brokerage’s employees moved the comment to a stand-alone post, giving the post a title and inserting a picture of Jesus with Shiamili’s face next to the comment. This led to several other allegedly defamatory posts about Shiamili and Ardor in the blog.
Shiamili posted a rebuttal on the page and asked the Website Operator to remove the posts. When the Website Operator refused, Shiamili filed a lawsuit against the Website Operator and two of its employees. The trial court dismissed the lawsuit, finding the Website Operator was protected by the CDA. An appeals court reversed, and the case was further appealed to the state’s highest court.
The Court of Appeals of New York affirmed the dismissal of the case by the trial court. The court considered whether the CDA shielded the Website Operator from Shiamili’s lawsuit. The CDA contains a provision which states that “[n]o 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.”
Congress created the CDA in response to a case in the late 1990s where an internet service provider (“ISP”) was held liable for a defamatory post on its website. The court in that case had ruled that because the ISP attempted to review some of the postings on the site, the ISP was therefore liable for the entire site’s content. By contrast, if the ISP had taken no action over the content of postings, it would not have had any liability in the defamation lawsuit. Through the CDA, Congress attempted to change this result by making a website operator liable only if it developed the content on its website and it would not be liable for content posted by others, even if the website did some filtering of the content posted by others on the site.
Shiamili argued that the Website Operator became a content provider of the defamatory material by implicitly encouraging negative comments through highlighting the post by “Ardor Realty Sucks”. The court rejected this argument, ruling that the CDA protected the Website Operator from liability. The Website Operator did not become a content provider by moving the allegedly defamatory post to a different location on the website. The Website Operator also did not contribute to the allegedly defamatory material, as none of its actions were alleged to be defamatory on their own. Therefore, the court affirmed the trial court’s dismissal of the Shiamili’s lawsuit.
One judge dissented, arguing that the Website Operator was not entitled to the protections of the CDA because it did not play a passive role in the defamatory postings but rather encouraged the allegedly defamatory postings about a competitor.
Shiamili v. The Real Estate Group of New York, Inc., 952 N.E.2d 1011 (N.Y. 2011)
Editor’s Note: NAR’s Code of Ethics requires websites of REALTORS® to paint a “true picture” through Article 12 and Standard of Practice 15-3 requires REALTORS® to remove or clarify false or misleading statements about competitors on its website that they know about.