## Facts

- Prodigy Services Company (Prodigy) operated an online service that included electronic mail and electronic bulletin boards.
- Prodigy had, by the time of the events, ceased efforts to maintain editorial control over the content on its bulletin boards.
- Alexander G. Lunney was a 15-year-old Boy Scout who lived in the same area as the Scout leader who received the challenged message.
- An unknown person opened multiple Prodigy accounts using variations of Lunney’s name.
- Using those accounts, the unknown person sent the Scout leader a “vile and obscene” email containing threats; the email appeared to have been authored and signed by Lunney.
- The unknown person also used the accounts to post vulgar messages on Prodigy’s bulletin boards in Lunney’s name.
- A complaint was made to local police and Boy Scout authorities; Lunney denied sending the email, and there was no evidence that police took action against him or that Scout authorities disciplined him.
- After Prodigy learned of the impersonation and postings, it closed the offending accounts, removed the bulletin-board postings, and apologized to Lunney.
- Lunney, by his father, sued Prodigy (and others) seeking damages based on the impersonation messages, proceeding on defamation (libel) and related tort theories.
- Prodigy made multiple summary-judgment motions; the Supreme Court denied the later motions, and Prodigy appealed from the orders denying those motions.

## Issues

1. Whether an online service provider that “furnished the medium” through which an unknown user transmitted emails and bulletin-board posts can be held liable for libel based on that third party’s content.
2. Whether common-law principles historically applied to telegraph and telephone carriers bar defamation (and related) liability for a service provider that did not author or originate the message.
3. Whether, on this record, Prodigy was entitled to summary judgment dismissing the claims against it.

## Decision

- The Appellate Division reversed the orders that denied Prodigy’s motions for summary judgment.
- The court granted summary judgment to Prodigy and dismissed the claims against it.
- Relying on a common-law privilege historically afforded to telegraph companies, the court concluded that Prodigy could not be treated as the publisher of the imposter’s communications merely because it provided the system used to transmit them.

## Legal Principles

- Under New York common law, a communications intermediary functioning as a carrier—transmitting messages created by others—generally is not liable in defamation for the content of those messages absent a basis to treat the intermediary as the originator or publisher of the statement.
- A privilege recognized for telegraph/telephone carriers may apply to an online service provider when the provider’s role is limited to furnishing the medium for transmission rather than creating the content.
- Liability for libel requires “publication” by the defendant; providing the channel over which a third party transmits a statement, without more, does not establish publication in the sense required for defamation liability under the privilege applied by the court.
- Post-notice steps such as closing accounts, removing postings, and issuing an apology do not transform a service provider into the publisher of the original third-party statements.
- Where the alleged wrongful content is authored by an unidentified user and the provider’s conduct is limited to transmission, summary judgment dismissing defamation and related claims is appropriate under the carrier-like privilege.

## Conclusion

The Appellate Division held that Prodigy, which in effect supplied the medium through which an imposter sent an obscene email and posted vulgar bulletin-board messages in a minor’s name, was protected by a common-law privilege historically applied to telegraph carriers and therefore could not be held liable as a publisher for libel based solely on transmitting third-party content; the court reversed the denial of summary judgment and dismissed the claims against Prodigy.


Lunney v. Prodigy Services Company, 250 A.D.2d 230, 683 N.Y.S.2d 557 (1998)