Metropolitan News-Enterprise


Tuesday, November 21, 2006


Page 3


Internet Poster Not Liable for Republishing Defamation—S.C.


By a MetNews Staff Writer


A federal law that immunizes users of interactive computer services from liability for content authored by others abrogates traditional liability for republication of material that one knows or reasonably should know to be false and defamatory, the state Supreme Court unanimously ruled yesterday.

Reversing, in part, a decision of the First District Court of Appeal’s Div. Two, the ruling wipes out claims by Dr. Stephen Barrett and Dr. Terry Polevoy, who operate Web sites attacking what they claim are fraudulent alternatives to traditional medicine. The pair alleged that they were libeled in newsgroup postings by Ilena Rosenthal, an advocate of “alternative medicine.”

In striking the plaintiffs’ claims under the anti-SLAPP law, Alameda Superior Court Judge James Richman—since elevated to the Court of Appeal— 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.” The statute expressly preempts conflicting state law.

Rosenthal described Barrett as “arrogant, bizarre, closed-minded; emotionally disturbed, professionally incompetent, intellectually dishonest, a dishonest journalist, sleazy, unethical, a quack, a thug, a bully, a Nazi, a hired gun for vested interests, the leader of a subversive organization, and engaged in criminal activity (conspiracy, extortion, filing a false police report, and other unspecified acts.)”

She similarly characterized Polevoy as “dishonest, closed-minded; emotionally disturbed, professionally incompetent, unethical, a quack, a fanatic, a Nazi, a hired gun for vested interests, the leader of a subversive organization, and engaged in criminal activity (conspiracy, stalking of females, and other unspecified acts)” and as having made anti-Semitic remarks.”

The statements were posted to two Web sites not operated by Rosenthal and were taken from an e-mail she received from Tim Bolen, a co-defendant in the suit by Barrett and Polevoy but not a party to the appeal.

Richman ruled, and the Court of Appeal and Supreme Court agreed, that all of the statements about Barrett and most of those about Polevoy were protected opinion under California common law. The exception was the accusation that Polevoy had stalked a Canadian television producer, which Richman said was actionable under California law but protected by Sec. 230 immunity.

The Court of Appeal disagreed on the latter point, saying Polevoy could  prevail by proving Rosenthal knew, or reasonably should have known, that the stalking allegation was false. Sec. 230’s reference to a “publisher,” the Court of Appeal reasoned, did not show congressional intent to confer absolute immunity on those who uncritically republish defamatory material originating elsewhere.

But Justice Carol Corrigan, writing for the high court, said the Court of Appeal got it wrong.

“We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences,” the justice said. “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.”

Corrigan cited Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, in which the court held that AOL could not be held liable for the alleged consequences of a bulletin board posting that falsely suggested the plaintiff was selling t-shirts with offensive slogans relating to the bombing of the Oklahoma City federal building.

 The plaintiff claimed that AOL, which eventually removed the posting, was liable for unreasonable delay in doing so, as well as for refusing to post a retraction and failing to screen for similar postings.

In concluding that AOL was immune under Sec. 230, the court said that Congress intended to foster the use of the Internet as a broad medium for communications, and to have service providers rather than courts or governments regulate content. The court rejected the plaintiff’s argument that Congress intended to draw a distinction between publishers, who at common law would be liable for defamation on the same basis as authors, and “distributors” such as book sellers and news vendors who are only liable if they know or reasonably should know of the publication’s defamatory content.

Zeran, Corrigan noted yesterday, has been cited by courts in numerous jurisdictions, including by two Court of Appeal panels, one of which held that a city was immune from liability to a mother whose child viewed sexually explicit photographs at a computer terminal in the public library, and another holding that eBay Inc. was not liable to a purchaser of allegedly fraudulent celebrity autographs.

The Court of Appeal, she wrote, was “[s]wimming against the jurisprudential tide,” in ruling that common law liability for republication may still exist. The statute, she wrote, is “broad and direct” in treating all distributors of Internet content as “publishers” who are free to “make an editorial decision on how to treat the posted material” without the chilling effect of potential defamation liability. 

While all of the justices signed Corrigan’s opinion, Justice Carlos Moreno posited in a separate concurrence that liability might still exist if the republisher and the original source conspired to defame the plaintiff. But there was no evidence to support a claim that Rosenthal conspired with Bolen, Moreno said.

The case was argued on appeal by Christopher Grell of Oakland for Polevoy, Mark Goldowitz of Berkeley for Rosenthal, and Ann Brick of San Francisco for the ACLU of Northern California as amicus supporting Rosenthal. Other amici backing Rosenthal included the Electronic Frontier Foundation; the parent companies of, eBay, Google, Yahoo, Netscape, ESPN, CNN, the Washington Post, and other providers of Internet content; the California Newspaper Publishers Association; and a group of law professors.

The case is Barrett v. Rosenthal, 06 S.O.S. 5594.


Copyright 2006, Metropolitan News Company