Can Web Operators Edit and Alter User Generated Content and Still Be Protected under CDA? New York Court Of Appeals Says Yes!

November 8, 2011 – This past June, New York’s highest state court held that Section 230 of the Communications Decency Act (CDA) shields web operators from liability for allegedly defamatory user generated content (UGC), even if the web operators edit or alter the content.

In Shimali, & c. v. The Real Estate Group of New York, Inc., et al., the plaintiff alleged that the defendant, a competitor, published defamatory UGC about the plaintiff, intentionally highlighted the UGC by moving it to a separate post, and then added its own defamatory comments and an illustration related to the original UGC. According to the New York Court of Appeals, the plaintiff did not become a content provider simply by re-posting and providing a forum for further commentary, for that is “well-within a ‘publisher’s traditional editorial functions.’”  Similarly, encouraging negative commentary did not make the web operator a content provider because creating “an open forum for third-parties to post content – including negative commentary – is at the core of what Section 230 protects,” although the court indicated the outcome might be different had the defendant required negative comments as a condition of use. The court found that the plaintiff did author the additional comments and illustration accompanying the UGC post, but determined such content was not defamatory as a matter of law.

Despite a split 4-3 decision in the case and a strong dissenting opinion, the court believed it was following “national consensus” by interpreting the CDA to immunize web operators from liability for UGC “wherever such liability depends on characterizing the provider as ‘publisher or speaker’ of objectionable material” and to bar suits “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.”

So what does this mean for web operators who not only welcome but intentionally highlight posts that may be derogatory and potentially defamatory? It seems that as long as posting a negative comment is not a condition of use and the web operator does not have a hand in authoring or materially developing he content, web operators are immune from liability under the CDA, even if they take editorial liberties in publicizing the negative content. At least in New York. We’ll have to see if that is in fact the “national consensus” elsewhere.