Court ruling gives free-speech protections to reposting messages on Internet boards

From the Fall 2001 issue of The News Media & The Law, page 21.

By Monica Dias

Two lawsuits filed in Illinois in July and an appeal pending in California could help define the extent to which Web site operators will be liable for defamation when they post messages written by other people.

All three cases pit a self-described medical journalist against advocates of alternative medicine.

In each case, retired Pennsylvania psychiatrist Stephen Barrett sued operators of Web sites and Internet discussion groups for libel after they posted articles that attacked his criticism of alternative medicine. Many of the articles were written by California publicist Tim Bolen, who has been highly critical of Barrett.

Barrett, a consumer advocate, operates a Web site called quackwatch.com that seeks to expose health fraud.

Barrett met partial defeat in California, where the trial judge dismissed one defendant on July 25. In that case, Barrett, Canadian doctor Terry Polevoy and an attorney sued seven defendants, including Ilena Rosenthal, who runs an Internet discussion group. The plaintiffs argued that Rosenthal’s Web site called Barrett “a quack” and republished messages written by Bolen that accused Polevoy of stalking a woman.

The California lawsuit, filed in state Superior Court in Oakland, also accused the defendants of calling Barrett “arrogant, bizarre, close-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,” the complaint says.

Superior Court Judge James A. Richman ruled that state and federal law protected Rosenthal from the libel suit. (Barrett v. Clark)

California’s anti-SLAPP statute protected the Internet messages because they concerned an issue of public interest — alternative medicine — and the plaintiffs had not proven the statements were libelous, Richman ruled.

SLAPP is an acronym for “strategic lawsuits against public participation.” Anti-SLAPP statutes protect people from lawsuits brought primarily to chill the valid exercise of free speech, particularly when the speech concerns an issue of public interest.

Richman said Rosenthal’s posts that Barrett and Polevoy were “quacks,” that Barrett was “arrogant” and a “bully,” and that Barrett had tried to “extort” her were opinions, not false assertions of fact.

More importantly, Richman held that the federal Communications Decency Act protected Rosenthal because she did not “create” or “develop” the message posted on her page that said Polevoy stalked a woman, the ruling says. He said the law protects Internet service providers and Web site operators because they aren’t treated as the publisher or speaker of information provided by someone else.

“As a user of an interactive computer service, that is, a newsgroup, Rosenthal is not the publisher or speaker of Bolen’s piece,” Richman wrote. “Thus, she cannot be civilly liable for posting it on the Internet. She is immune.”

Barrett’s attorney, Christopher E. Grell, who also is a plaintiff in the California case, said he will appeal. Meanwhile, the lawsuit against the other defendants continues.

Grell said the Communications Decency Act was meant to protect Internet providers who unintentionally publish libelous statements, not those who knowingly do so. Richman’s ruling “throws the whole concept of libel on its ear,” Grell said.

“As it now stands, anybody is free to republish anything libelous or slanderous with complete immunity.”

Barrett said: “Somebody could even post a message under an assumed name himself in Timbuktu or the jungles of Africa and then republish it under his own name in the U.S., and under the judge’s ruling the republication is safe. It makes no sense at all.”

The California ruling hasn’t deterred Barrett from filing two similar lawsuits in Illinois, although Rosenthal is not a defendant in those cases.

On July 30, Barrett filed lawsuits accusing Web site operators of libeling him and placing him in a false light. A suit filed in DuPage County Circuit Court accuses Owen R. Fonorow of posting articles written by Bolen that describe Barrett as a “de-licensed” doctor. (Barrett v. Fonorow) A suit filed in Cook County Circuit Court makes the same accusation against Joseph Mercola, who also operates a Web site. (Barrett v. Mercola)

Peter M. Katsaros, Barrett’s attorney in Illinois, had no opinion on how the California ruling might affect the Illinois cases.