New England Biz Law Update
A recent California Supreme Court decision ruled that distributors and users of information on the Internet cannot be liable for defamation and are immune from suit under the Communications Decency Act.
The holding reversed an appeals court decision and sided with the majority of courts who have interpreted the Act to provide immunity for those who transmit – but are not the original source of – allegedly defamatory information. (Barrett v. Rosenthal, Docket No. S122953. Nov. 20, 2006.)
The case arose when two doctors sued the moderator of a website who allegedly distributed defamatory information about them.
Allowing the lawsuit to go forward would have established a “heckler’s veto” on the Internet, said Mark Goldowitz, a Berkeley attorney and director of the California anti-SLAPP project, who represented the defendant.
“As a practical matter, Internet service providers are risk-averse, and if complaints are made about a comment or posting, they will just take it down,” he said. “All someone would need to do is make noise and accuse someone of making a defamatory comment, and because of the economics of the situations, ISPs would remove it, regardless of merit.”
Kurt Opsahl – a staff attorney at the Electronic Frontier Foundation in San Francisco, an advocacy organization for digital rights that filed an amicus brief on behalf of the defendant – praised the decision as protecting First Amendment rights on the Internet.
“Websites that have message boards, or online shopping sites that have user reviews and blog commentary – all those things wouldn’t be possible or would be extremely limited,” if the court hadn’t reached the result it did, he said.
Oakland solo attorney Christopher E. Grell, who represented the plaintiffs, did not respond to requests for comment.
Broad immunity
The plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated websites devoted to exposing health frauds.
Ilena Rosenthal was the director of the Humantics Foundation for Women and operated an Internet discussion group. The plaintiffs alleged that she distributed defamatory statements in e-mails and Internet postings, and failed to remove the comments even after they warned her that the information was false.
The defendant filed a motion to dismiss the complaint under California’s anti-SLAPP (Strategic Litigation Against Public Participation) statute, claiming her statements were protected speech. She also claimed to be immune under §230 of the Communications Decency Act of 1996, which states 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” and “[n]o cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.”
A trial court granted her motion, but an appellate court reversed.
The California Supreme Court said the motion to dismiss should have been granted.
The publisher/distributor distinction in common law “makes no difference for purposes of Sect. 230 immunity,” the court said.
“Given that ‘distributors’ are also known as ‘secondary publishers,’ there is little reason to believe Congress felt it necessary to address them separately. There is even less reason to suppose that Congress intended to immunize ‘publishers’ but leave ‘distributors’ open to liability, when the responsibility of publishers for offensive content is greater than that of mere distributors,” the court said.
The court also rejected the idea that “notice-based liability” was appropriate.
“Subjecting service providers to notice liability would defeat ‘the dual purposes’ of Sect. 230 by encouraging providers to restrict speech and abstain from self-regulation. A provider would be at risk for liability each time it received notice of a potentially defamatory statement in any Internet message, requiring an investigation of the circumstances, a legal judgment about the defamatory character of the information, and an editorial decision on whether to continue the publication. ‘Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context,’” the court said, and service providers would “likely eschew any attempts at self-regulation.”
The court noted that this was one of the first published cases applying Sect. 230 to an individual – most suits had been against providers.
‘Disturbing implications’
The court did acknowledge the negative consequences of recognizing such broad immunity.
“We share the concerns of those who have expressed reservations about the…broad interpretation of Sect. 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications. Nevertheless, by its terms Sect. 230 exempts Internet intermediaries from defamation liability for republication. … Plaintiffs are free under Sect. 230 to pursue the originator of a defamatory Internet publication. Any further expansion of liability must await Congressional action,” the court said.
The uphill battle facing defamation plaintiffs is the cost of protecting free speech, Opsahl said.
A concurring judge suggested that publishers who conspire with original content providers to defame would not be protected by Sect. 230 immunity.
But Opsahl, who said he wasn’t aware of any other courts to use similar logic, expressed some concern about the theory.
“I’m not sure that is the best way to go,” he said. “Congress has provided very powerful immunity in Sect. 230, because they recognized the value of online speech, and I would be hesitant to chip away at those protections.”
