New York's appellate courts wrestle with significant issues in Internet defamation cases.

• Author: Pierce, Alan J.

1. INTRODUCTION II. THE BEGINNING OF THE INTERNET DEFAMATION AGE IN NEV YORK--LUNNEY AND FIRTH A. Lunney v. Prodigy Services Co B. Firth v. State of New York III. INTERNET DEFAMATION AND LONG-ARM JURISDICTION A. SPCA of Upstate New York B. Ehrenfeld v. Bin Mahfouz IV. PRE-ACTION DISCLOSURE TO IDENTIFY ANONYMOUS "DEFAMERS" V. THE COURT OF APPEALS COMES FULL CIRCLE AND DISMISSES INTERNET DEFAMATION CLAIMS UNDER THE CDA IN SHIAMILI IN ANOTHER SPLIT DECISION A. The Majority Opinion B. The Dissent VI. CONCLUSION I. INTRODUCTION

   In 1999 and 2002, the New York Court of Appeals was presented with its first internet defamation cases, Lunney v. Prodigy Services Co., (1) and Firth v. State. (2) In Lunney, the court held, inter alia, that an internet service provider ("ISP") is not a "publisher" for defamation purposes of email and internet bulletin board messages sent on its server. (3) The court described Firth as "the first occasion for us to determine how our defamation jurisprudence, developed in connection with traditional mass media communications, applies to communications in a new medium--cyberspace--in the modern Information Age." (4) In a nationally significant landmark ruling, the court held that one of the traditional defamation principles of law--the "single publication rule" for purposes of determining the accrual of the one year statute of limitations--applies to internet defamation cases. (5) These two cases were a clear signal that the Court of Appeals would likely apply traditional defamation rules to internet defamation.

   In the more than ten years since Lunney and Firth were decided, New York's appellate courts have addressed several traditional defamation issues as well as "internet specific" issues in the context of the ever-increasing internet publication world in which we live. (6) This article will address some of these issues, including long-arm jurisdiction, pre-action disclosure to determine the identity of the often anonymous publisher of the allegedly defamatory statements, and application of a new federal statute, the Communications Decency Act. (7) Before doing so, however, we will set the stage by briefly addressing Lunney and Firth to see how this all started and to provide context for how the application of traditional defamation rules has played out as New York's appellate courts have wrestled with internet defamation cases.

2. THE BEGINNING OF THE INTERNET DEFAMATION AGE IN NEW YORK--LUNNEY AND FIRTH

   1. Lunney v. Prodigy Services Co.

      The facts in Lunney are not at all like a typical, traditional defamation case, but are more common in today's internet defamation world. An imposter

      [u]surp[ed] the name of Alexander Lunney, a teenage Boy Scout, [and] opened a number of accounts with Prodigy, [an ISP]. The imposter posted two vulgar messages in Lunney's name on a Prodigy bulletin board and sent a threatening, profane ... e-mail[] message in Lunney's name to a third person. Lunney ... sued Prodigy, asserting that he has been stigmatized by being falsely cast as the author of these messages. The principal issues [on appeal were] whether, under these circumstances, Prodigy [could] be held liable for defamation or negligence. (8) The Court of Appeals held that it could not be held liable and affirmed dismissal of the complaint against Prodigy. (9)

      One of the emails in "Lunney's name [was sent] to a local scoutmaster. The subject line of the message read 'HOW I'M GONNA'KILL U'; the body [of the email] was vulgar in the extreme." (10) When Lunney learned of the emails and bulletin board messages at issue, he denied authorship and claimed an imposter did this, and Prodigy and local investigators "readily accepted Lunney's denial of authorship and his innocence." (11)

      The court first addressed the "threshold ... question of whether the messages were defamatory ... [D]efamation cases most typically involve communications that directly impugn the plaintiff. Here, the messages were not about the plaintiff, but were ascribed to him." (12) The court noted that in Ben-Oliel v. Press Publishing Co., (13) it had "held that a scholar stated a cause of action for libel based on the publication of a flawed article written by someone else, but improperly attributed to her." (14) Therefore, the court "assume[d]" for purposes of the case "that although he was not directly attacked, Lunney was defamed by being portrayed as the author of the foul material." (15)

      The court then held that "even if the material was 'defamatory' Prodigy is protected by the common-law privilege recognized in Anderson v. New York Tel. Co." (16) Turning first to the emails, the court wrote that email:

      is the day's evolutionary hybrid of traditional telephone line communications and regular postal service mail. As one commentator explained, "[t]o transmit a message, one must have access to an on-line service's e-mail system and must know the recipient's personal e-mail address." Once this is accomplished, a person may communicate by composing a message in the e-mail computer system and dispatching it telephonically (or through some other dedicated electronic line) to one or more recipients' electronic mailboxes. A recipient may forward the message or reply in like manner. Commercial on-line services, such as Prodigy, transmit the private e-mail messages but do not exercise any editorial control over them. (17) The court then evaluated Lunney's defamation claim "in accordance with our established tort principles" because his action was "grounded in New York common law." (18) Notably, the court wrote that "[a]lthough they were fashioned long before the advent of e-mail, these settled doctrines accommodate the technology comfortably, and with apt analogies." (19) In Anderson, the court had held that a telephone company could not be "held liable as a publisher of a scurrilous message that a third party recorded and made available to the public by inviting anyone interested to dial in and listen." (20) In Anderson, the court adopted that appellate division dissent, which found that the telephone company could not be considered a publisher, because in "no sense has ... [it] participated in preparing the message, exercised any discretion or control over its communication, or in any way assumed responsibility." (21) Moreover, the Lunney court noted, "Anderson also holds that even if the telephone company could be counted as a publisher, it would be entitled to a qualified privilege subject to the common-law exception for malice or bad faith." (22)

      The court then held that "[t]he Anderson doctrine parallels the case before us. Prodigy's role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers' conversations. In this respect, an ISP, like a telephone company, is merely a conduit." (23) Therefore, with respect to the email, the court held that under the facts of this case, "Prodigy was not a publisher of the e-mail transmitted through its system by a third party." (24) In addition, the court held that Prodigy is entitled to "the common-law qualified privilege accorded to telephone and telegraph companies. The public would not be well served by compelling an ISP to examine and screen millions of e-mail communications, on pain of liability for defamation." (25)

      However, the court found that "[a]s distinguished from e-mail communication, there are more complicated legal questions associated with electronic bulletin board messages, owing to the generally greater level of cognizance that their operators can have over them." (26) The court compared electronic bulletin boards to traditional media, noting that

      In some instances, an electronic bulletin board could be made to resemble a newspaper's editorial page; in others it may function more like a "chat room." In many respects, an ISP bulletin board may serve much the same purpose as its ancestral version, but uses electronics in place of plywood and thumbtacks. Some electronic bulletin boards post messages instantly and automatically, others briefly delay posting so as not to become "chat rooms," while still others significantly delay posting to allow their operators an opportunity to edit the message or refuse posting altogether. (27) "Lunney argue[d] that because Prodigy ... reserves ... broad editorial discretion to screen its bulletin board messages [in its membership agreements,] it should be liable as a publisher of such messages." (28) On the other hand, Prodigy argued that it was not a publisher of messages posted on its bulletin board because although it reserved this right, it is not required to screen messages, and it does not normally do so. (29)

      The court found that:

      [t]he Appellate Division aptly concluded that even if Prodigy "exercised the power to exclude certain vulgarities from the text of certain [bulletin board] messages," this would not alter its passive character in "the millions of other messages in whose transmission it did not participate" nor would this, in our opinion, compel it to guarantee the content of those myriad messages. (30) Thus, the court concluded that "in this case, Prodigy was not a publisher of the electronic bulletin board messages. [It] s[aw] no occasion to hypothesize whether there may be other instances in which the role of an electronic bulletin board operator would qualify it as a publisher. (31)

      Finally, the court rejected Lunney's attempts to impose liability based on negligence or the Communications Decency Act ("CDA"). (32) It found that there was "no justification for such a limitless field of liability" as the negligence rule that Lunney advocated, and that "It]his case does not call for" the court to retroactively apply the CDA as advocated by Prodigy. (33)

   2. Firth v. State of New York

      Firth was a former high-level employee of the New York State Department of Environmental Conservation ("DEC") who claimed that in a report dated December 16...