Internet Liability Case Decision

A significant ruling was handed down in the California Supreme Court Tuesday. The case, Barrett v. Rosenthal, related to Internet liability.

The ruling summarized the facts as follows:

Plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated Web sites devoted to exposing health frauds. Defendant Ilena Rosenthal . . . operated an Internet discussion group. Plaintiffs alleged that Rosenthal and others committed libel by maliciously distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs' character and competence and disparaging their efforts to combat fraud. They alleged that Rosenthal republished various messages even after Dr. Barrett warned her they contained false and defamatory information.

Ilena Rosenthal claimed she was protected under Section 230 of the Communications Decency Act of 1996, in which Congress stated: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." She was not the original person to "defame" Barrett and Polevoy. She re-printed something that a man named Tim Bolen had previously written.

The original hearing of the case upheld her position. However, then the California Court of Appeals, in a radical decision, ruled in favor of the plaintiffs. Tuesday, the California Supreme Court overturned the Court of Appeals saying:

We conclude that section 230 prohibits 'distributor' liability for Internet publications. We further hold that section 230(c)(1) immunizes individual 'users' of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeals.

We acknowledge that recognizing broad immunity for defamatory re-publications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.

This is huge. The court spent a fair amount of time talking about the difference under law between a "distributor," like a newspaper vendor or bookseller versus a "publisher." According to the California Supreme Court, historically, "under the common law, "distributors" . . . are liable only if they had notice of a defamatory statement in their merchandise. The publisher of the newspaper or book where the statement originally appeared, however, may be held liable even without notice."

The California Supreme Court said that: "subjecting Internet service providers and users to defamation liability would tend to chill online speech."

The Electronic Frontier Foundation (EFF) applauded this decision, saying that if the court had found in favor of the plaintiffs:

the implications for free speech online are far-reaching. Bloggers could be held liable when they quote other people's writing, and website owners could be held liable for what people say in message boards on their sites. The end result is that many people would simply cease to publish or host websites.

The ACLU agreed with the EFF and their staff attorney Ann Brick was quoted on the EFF website:

Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them . . . The vitality of the Internet would quickly dissipate if the posting of content written by others created liability.