Metropolitan News-Enterprise


Friday, October 17, 2003


Page 1


Web Poster Who Republishes Defamation May Be Liable—C.A.


By KENNETH OFGANG, Staff Writer/Appellate Courts


A recent federal law that immunizes users of interactive computer services from liability for content authored by others does not abrogate traditional liability for republication of material that one knows or reasonably should know to be false and defamatory, the First District Court of Appeal has ruled.

Div. Two Wednesday breathed new life into claims by Dr. Terry Polevoy, a Canadian-based physician and operator of the “Quackbuster” website, that he was libeled in newsgroup postings by Ilena Rosenthal.

The appellate panel overturned Alameda Superior Court Judge James Richman’s dismissal of Polevoy’s case under the anti-SLAPP statute. The court did, however, uphold the dismissal of claims by Polevoy’s co-plaintiff, Dr. Stephen Barrett, saying Barrett did not prove he was likely to prevail.

The Antagonists

Rosenthal is an advocate of “alternative medicine,” while Polevoy and Barrett have devoted themselves to combating “nonstandard” medical practices. In striking the plaintiffs’ claims under Code of Civil Procedure Sec. 425.16, Richman ruled that even if Rosenthal defamed the pair in her postings, she was immune under Sec. 230 of the Communications Decency Act, which provides in part that “[n]o 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.”

But Presiding Justice J. Anthony Kline, writing for the Court of Appeal, said Polevoy can still prevail if he proves that Rosenthal knew of the falsity of republished material from other sources accusing Polevoy of “stalking women” and various specific criminal acts.

Legislative Intent

The statutory reference to “publisher[s]” does not show legislative intent to confer absolute immunity, Kline wrote.

Citing the U.S. Supreme Court’s Gertz v. Robert Welch, Inc. decision, Kline wrote:

 “Legislative use of the legally uncertain word ‘publisher’ is simply too flimsy a basis upon which to grant providers and users of interactive computer services what amounts to an ‘absolute protection’ requiring the ‘total sacrifice of the competing value served by the law of defamation’ and the subordination of ‘a concept at the root of any decent system of ordered liberty.’...When distinguishing the liability of publishers and distributors, eminent law professors writing scholarly articles in learned journals commonly use the word ‘publisher’ to refer only to a primary publisher, even when their subject is the transmission of speech in cyberspace.”

The case is Barrett v. Rosenthal, 03 S.O.S. 5385.


Copyright 2003, Metropolitan News Company