The New York City Department of Sanitation runs an internal message board for employees. An as-yet-unidentified employee posted a message to the board regarding a civil-service test cheating scandal. The pseudonymous message claimed that the plaintiff leaked the answers to the test. The plaintiff claims the message defamed him and sued, among others, the Sanitation Department. The Sanitation Department successfully defended on Section 230 grounds:
ICS Provider. “DSNY’s internal communication network messaging board is an interactive computer service as defined in 47 USC 230(f)(2). Relevant case law has held that an employer who provides employees with access through its internal computer system is an interactive computer service provider and among the class of parties potentially immune under the CDA.” Cite to the old Delfino case; an even better cite would have been Miller v. Fedex.
Publisher/Speaker of Third-Party Content. “DSNY is not the entity that is responsible, in whole or in part, for the alleged defamatory statement posted on its internal communication network messaging board. DSNY is not the publisher or speaker, did not create the message, and did not authorize or approve John Doe’s message or its content….Plaintiff provides no controlling or persuasive authority finding an employer is the creator or developer of a message sent by one of its employees for purposes of the CDA.”
Thus, the Sanitation Department qualified for Section 230 immunity for the message board post.
Employer Liability. “The message posted by John Doe was seemingly out of personal motive and was unrelated to the furtherance of DSNY’s business at the time of the incident.”
Implications. This is a quirky ruling for at least two reasons. First, it’s odd to think of Section 230 as applying to employer/employee liability because normally employers are vicariously liable for their employees’ acts within the scope of employment. Here, the court separately rejected the Sanitation Department’s vicarious liability for the user post, which could have been sufficient to resolve the case. Nevertheless, Section 230 played a helpful role by gap-filling any claims based on the department’s continued publication of the content, not just its initial dissemination. From a Section 230 perspective, the Delfino and Miller cases long ago blazed that trail.
Second, it may be puzzling to see Section 230 immunize government actors because they are subject to other statutory schemes governing their liability. For example, governments may be able to claim sovereign immunity, and governments may be subject to Constitutional obligations that cannot be overridden by statute (e.g., government removal of content may constitute unconstitutional censorship). In some scenarios, Section 230 could conflict with these other schemes, raising interesting issues that unfortunately the court didn’t engage with.
If we put aside the employment and government-defendant issues, the remaining legal principles are simple. The venerable Shiamili case, cited by the court several times, is governing precedent and right on point regarding 230’s applicability to third-party message board posts.
Case citation: Montanino v. New York City Dep’t of Sanitation, 2023 N.Y. Misc. LEXIS 7383 (N.Y. Supreme Ct. Oct. 5, 2023)