This month, the New York Court of Appeals ruled that website operators were not liable for allegedly defamatory comments posted by a third party on the website’s blog, even though the operators reposted those comments.
As we’ve noted before, Section 230 of the Communications Decency Act essentially provides that website operators may not be held liable for content provided by third parties. An operator may lose immunity, however, if it is responsible for creating or developing that content, in whole or in part. In this case, the plaintiff argued that the operators should not be entitled to immunity because they created a website that implicitly encouraged users to post negative comments and because the operators reposted some of the comments.
The court noted that it was joining “what may fairly be called the national consensus” and held that the defendants were immune under the CDA. The court determined that creating an open forum to post content — including negative content — is at the core of what Section 230 protects. Moreover, the defendants did not become providers of the allegedly defamatory content by reposing it. This, the court determined, is well within a publisher’s traditional editorial functions. This decision goes further than some recent decisions because, as the dissent noted, the defendants may have embellished some of the defamatory statements.
Companies that invite consumers to post content on their sites can breathe easier as a result of some of this, and other similar decisions. But it’s important to remember that companies may lose their immunity if they play a role in developing the problematic content and that there can be a fine line between simply inviting content and developing it. Companies should consult with their legal counsel to ensure they stay on the right side of that line.