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Hosting or posting does not support libel claim

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NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Libel   ·   Nov. 21, 2006

NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Libel   ·   Nov. 21, 2006

Hosting or posting does not support libel claim

  • Internet service providers and users cannot be held liable for publishing the defamatory statements of another author, according to the California Supreme Court.

Nov. 21, 2006  ·   Federal law protects Internet providers and users from being sued for posting defamatory material generated by another person, the California Supreme Court said Monday, ruling that liability for defamation rests with the original author.

“We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences,” Justice Carol A. Corrigan wrote for the unanimous court.

Nonetheless, the court found that “plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.”

The case resolves a lawsuit brought by Drs. Stephen Barrett and Timothy Polevoy against Ilena Rosenthal because Rosenthal posted on an Internet newsgroup an e-mail she received from a third party that questioned Barrett’s “character and competence.” Rosenthal’s republishing of the material came after the two doctors had warned her they considered it false and damaging information.

The California intermediate court had found in favor of the doctors, ruling that even though Rosenthal was not the original author of what she was posting, because she had notice of its defamatory nature she could be sued for libel in spite of the broad immunization provisions of the federal Communications Decency Act of 1996.

On Monday, the Supreme Court unanimously overturned that decision, ruling that the intermediate court had misread the act as preserving the common law distinction between “publishers” and “distributors.”

According to common law, publishers such as newspapers could be held liable for defamation based on the content of its publications, whereas “distributors” such as newspaper vendors, could be held liable only if they had actual notice of the defamatory nature.

The Supreme Court said that the federal law had eliminated this so-called “notice liability” for distributors by “broadly shielding all providers from liability of ‘publishing’ information received from third parties.” Therefore, not only are the Internet service providers immune, but so are the individual users who republish defamatory information, the court said.

The ruling is consistent with other courts that have interpreted the law and preserves Congress’s desire to “protect online freedom of expression,” the court wrote.

Somewhat paradoxically, in addition to freedom of expression, Congress intended the Communications Decency Act to promote censorship by the Internet service providers.

Prior to the act, at least one Internet service provider had been held liable as a publisher because the provider assumed a publisher-like role by screening and editing harmful material. The California Supreme Court said Congress granted Internet providers immunity in the hope the industry would self-regulate and purge the Internet of at least some offensive material.

Various Internet service providers and news media groups had weighed in with friend-of-the-court briefs urging the reversal of the intermediate court’s decision. These outlets were fearful that a decision against Rosenthal could be used to hold them liable for information published in various contexts, from bloggers to Internet discussion boards.

Mark Goldowitz, director of the California Anti-SLAPP Project and counsel for Rosenthal, said by bringing California back in line with the standard interpretation of the Communications Decency Act, media companies will not have to fear being sued there.

“It should be helpful because it means that litigants can’t go into California state court to evade the immunity for reposting on the Internet,” Goldowitz said.

In a separate concurring opinion, Justice Carlos Moreno wrote to emphasize that if two parties were to conspire to distribute defamatory information, with one person writing the information and another one distributing it, liability could still extend to the distributor under the Communications Decency Act.

(Barrett v. Rosenthal; Defendant’s Counsel: Mark Goldowitz, Berkeley, Calif.)NW

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