New York's Appellate Courts Wrestle with Significant Issues in Internet Defamation Cases
Pierce, Alan J., Albany Law Review
I. 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
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.
II. THE BEGINNING OF THE INTERNET DEFAMATION AGE IN NEW YORK--LUNNEY AND FIRTH
A. 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 . …