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New York Court Affirms ISP Immunity for Defamatory Postings Relying on common law analogy, the New York Court of Appeals unanimously ruled in Lunney v. Prodigy Services Co. that Prodigy is a conduit for information, like a telephone company, rather than a publisher of information, like a newspaper or magazine. Mary M. Luria e-mail this article URL New York's highest court closed out the millennium with an important ruling that Internet Service Providers (ISPs) cannot be held liable for their subscribers' defamatory e-mails or postings to electronic bulletin boards. Relying on common law analogy, the New York Court of Appeals unanimously ruled in Lunney v. Prodigy Services Co. that Prodigy is a conduit for information, like a telephone company, rather than a publisher of information, like a newspaper or magazine. On that basis, the Court dismissed a defamation claim asserted by the father of a Boy Scout whose son's name was stolen by an unidentified imposter who posted obscene messages on a Prodigy bulletin board and sent threatening and sexually explicit e-mails to the son's scoutmaster, all in the boy's name When the scoutmaster was informed of the messages, he confronted Lunney in front of his mother. The boy said he had nothing to do with the abusive messages, a denial which was accepted by the scoutmaster and the local police. After Prodigy learned of the messages, it terminated one of Lunney's accounts, claiming the boy had transmitted obscene and abusive material through the Prodigy service and submitted inaccurate profile information. After further investigation, Prodigy closed all the fraudulent accounts and apologized to the boy. But the apology was not enough, and LunneySr. sued Prodigy on behalf of his son, a minor, alleging that "Prodigy was derelict in allowing the accounts to be opened in his name, and was responsible for his having been stigmatized and defamed" by having the boy's name linked to the offensive messages. After the trial court denied Prodigy's motion for summary judgment, the Second Department reversed and dismissed the action. The New York Court of Appeals decision affirmed the grant of summary judgment for Prodigy, strictly on the grounds that an ISP such as Prodigy is entitled to a qualified privilege from liability. The Lunney court first disposed of the claims based on the offensive e-mail messages, finding that e-mail is today's "evolutionary hybrid of traditional telephone line communications and regular postal service mail" and that Prodigy, like the postal service and phone company, transmits but exercises no editorial control over electronic mail. "In this respect," the court wrote "an ISP, like a telephone company, is merely a conduit" and cannot be held liable as the publisher of allegedly defamatory messages. The electronic bulletin board messages presented a closer question. Mr. Lunney contended that Prodigy had assumed responsibility to exercise control over bulletin board postings because the ISP's membership agreement reserved the right toexercise such control. The court rejected that argument, finding that the mere reservation of editorial control - and even the actual exercise of such control over relatively few messages - does not transform an ISP from a passive and immune conduit to an active and potentially immune publisher of the millions of bulletin board messages which are posted on its service. As the first decision of its kind by any state court of last resort, the Lunney decision will be looked to for guidance by other courts. However, New York's Court of Appeals refused to rule on Prodigy's claim that it was protected by the potentially broader and clearer immunity provision arguably contained in section 230 of the Communications Decency Act (CDA). In thewidely-noted opinion of Zeran v. America Online, the Fourth Circuit Court of Appeals found that the CDA immunized AOL from liability for similar allegedly defamatory statements posted on an AOL bulletin board by an imposter in the plaintiff's name. (Davis & Gilbert Digest May/June 1998) Although a second judicial opinion on the CDA question would have been welcome, the Court of Appeals declined. "Given the extraordinarily rapid growth" of Internet technology, the Lunney court found it would be "plainly unwise to lurch prematurely into emerging issues." © 2000 Davis & Gilbert LLP       Davis & Gilbert LLP • 1740 Broadway • New York, NY 10019 tel: 212.468.4800 • fax: 212.468.4888   Privacy Policy • Terms & Conditions