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November 21, 2011

Just How Far Does the CDA Go in Protecting Blog Site Operators from Defamatory Posts?

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Section 230 of the Communications Decency Act (CDA) shields operators of “interactive computer services” from liability for defamatory posts by visitors. The big question is how far does this protection go – what are its limits?

A recent ruling by a divided New York Court of Appeals provides insight into the answer. If you operate a blog site, take heed.

Section 230 And Blog Site Liability For Defamatory Posts

Defamation is an intentional false communication, made either orally or in writing, published to a third party, which injures another person or company’s good name or reputation.

Prior to the enactment of the CDA in 1996, courts routinely held online providers liable for defamatory statements posted by their visitors. Liability was based on a theory that viewed the online provider which provided the medium for the defamatory statements to be essentially the same as a publisher or speaker of the defamatory statement.

Congress came to the rescue in the form of Section 230 of the CDA which provides: “No provider or user of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 USCA Sec. 230(c). This means 2 things for blog site operators:

* a blog site operator will be shielded from liability for defamatory posts by others (i.e. “another information content provider”); however,

* if the blog site operator makes the defamatory post himself or herself, then the blog site operator will be not be shielded from liability.

New York Court of Appeals Decision

The New York Court of Appeals case generally followed the typical fact pattern of a CDA Section 230 case. The defendant hosts an online forum, and an anonymous user posts statements that are presumably defamatory. Specifically, the post alleged that the plaintiff was a racist, was anti-Semitic, and that he abused his employees. If these were the only facts, Section 230 would clearly shield the forum host from liability.

However, additional facts caused the case to be a close one; specifically:

* the plaintiff is an executive of a real estate company, and the online forum defendant is a direct competitor of the plaintiff, and

* the defendant forum administrator re-posted the statements as a stand-alone post together with a new heading and some additional comments.

The plaintiff argued that the Section 230 shield from liability should not apply because the defendant forum administrator should be liable as if he had made the alleged defamatory statements himself. In support of this allegation, the plaintiff argued that the defendant’s website encouraged visitors to post derogatory comments. In addition, the plaintiff argued that the re-posting by the forum administrator amounted to unprotected statements by the forum administrator himself.

The court ruled in favor of the defendant forum administrator, finding that Section 230 provided the liability shield, despite the additional facts. However, a strong dissent authored by the Chief Judge indicated just how close this case was.

Conclusion

Blog site operators should take comfort that CDA Section 230 provides a shield from liability for defamatory statements made by visitors.

The New York Court of Appeals case was a very close one that easily could have gone the other way in another jurisdiction, given the additional facts. For this reason, to avoid liability blog site operators should refrain from any activity that could be argued as indicating they made the statements themselves, including encouraging derogatory comments and reposting comments by visitors.

This article is provided for educational and informative purposes only. This information does not constitute legal advice, and should not be construed as such.


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