Whether an Internet Service Provider ("ISP") is liable for defamation or negligence when an anonymous prankster fraudulently uses another person's identity to open an account with the ISP in order to send and post profane messages through and on the internet.

No. Internet Service Providers are liable for neither defamation nor negligence. ISP's are entitled to the common law privilege created in Anderson v. New York Tel. Co., 35 NY2d 746, because they only have a passive role in the transmission of offensive material generated by their users. To require ISPs to screen all potential customers and transmissions would subject them to an unreasonable amount of liability from potential defamation victims.

Plaintiff was the victim of an anonymous prankster who used Plaintiff's name to create several accounts with Defendant, an ISP, posted offensive material on an electronic bulletin board and sent an offensive e-mail to a third party. Neither the police nor the Defendant doubts that Plaintiff was not responsible for the messages. Defendant, after being notified that the accounts were not authorized by Plaintiff, closed the fraudulent accounts and deleted the offensive postings.

Plaintiff filed an action against Defendant alleging that the messages sent by the prankster defamed Plaintiff. Plaintiff alleged that stigma attached to Plaintiff because his name was associated with the offensive messages. Plaintiff argued that Defendant should be liable as the publisher of the messages. Furthermore, Plaintiff alleged that Defendant was negligent in allowing the prankster to create accounts using Plaintiff's name. The Appellate Division granted summary judgment for the Defendant, reversing the trial court's decision in favor of Plaintiff. The Court of Appeals granted Plaintiff's application for an appeal.

Regarding Plaintiff's defamation claim, the Court held that even if Plaintiff was defamed as a result of the prankster's actions, Defendant is not liable as the publisher of the offensive messages. The Court relied on the New York State common law doctrine created in Anderson v. New York Tel. Co., 35 NY2d 746. The Anderson court held that publishers are immune from defamation liability caused by material transmitted by them, but over which they merely retained passive editorial control, such as telephone service. The Court likened e-mail services to telephone service. This privilege is qualified by exceptions for bad faith or malice on the part of the publisher. Even where Defendant retains more active editorial control, such as electronic bulletin boards, the Court held that it would be unreasonable to expect Defendant to patrol the myriad messages placed on its bulletin boards.

Regarding Plaintiff's negligence claim, the Court held that it would be unreasonable to expect Defendant to confirm the identity of every person who seeks to open an account. Such a requirement, the Court held, would subject ISPs to a vast amount of tort liability.

The Court refused to consider whether the Communications Decency Act, 47 U.S.C. § 230, applied to the instant case. While the statute has been interpreted as granting federal immunity from lawsuits seeking to hold ISPs liable for transmitting defamatory material, the Court held that an application of the statute was unnecessary to decide the instant case, citing its policy against issuing advisory opinions, especially in developing fields.