Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 21, 2006

California Supreme Court Reverses Lower Court; Finds That Section 230 Immunizes "User" as Website "Publisher" In Defamation Case

The California Supreme Court has unanymously held that even if a web site provider knows or has reason to know that postings to a website are defamatory, it is immune from liability via Section 230 of the Communications Decency Act. The Court's decision reverses a lower court decision that found in favor of two physicians who had objected to postings about them uploaded to a site.

Dr. Stephen J. Barrett and Dr. TImothy Polevoy run websites "devoted to exposing health frauds." Ilena Rosenthal runs the Humantics Foundation and an Internet discussion group. Barrett and Polevoy "alleged that Rosenthal and others committed libel by maliciously distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs' character and competence and disparaging their efforts to combat fraud. They alleged that Rosenthal republished various messages evn after Dr. Barrett warned her they contained false and defamatory information.

"Rosenthal moved to strike the complaint under the anti-SLAPP statute....She claimed her statements were protected speech, and argued that plaintiffs could not establish a probability of prevailing because she was immune under section 230....She also contended her statements were not actionable. The court granted the motion....." except as to one posting with regard to the physicians, which alleged among other things that "Dr. Barrett is arrogant, bizarre, closed-minded...sleazy, unethical, a quack, a thug, a bully, a Nazi, a hired gun...and engaged in criminal activity..." and that "Dr. Polevoy is dishonest...a quack, a Nazi, a hired gun...and engaged in criminal activity...and has made anti-Semitic remarks." Co-defendant Tim Bolen made the statements in an emailed article which he sent to Rosenthal. "Rosenthal posted a copy of this article on the Web sites of two newsgroups devoted to alternative health issues and the politics of medicine, not on the site of her own discussion group....The trial court ruled that this republication was immunized by section 230(c)(1)."

The Court of Appeal ruled that section 230 "did not protect Rosenthal from liability as a "distributor" under the common law of defamation." The Supreme Court agreed to hear the case.

The California Supreme Court first reviewed the Zeran court's holding and rationale, then the California Court of Appeal's holding and analysis, particularly they are at odds on the question of "distributor" liability. Said the Court, "Recognizing "distributor" liability would have a dramatic impact on Internet service providers. We agree with the Zeran court that Congress did not intend to create such an exception to section 230 immunity. Rosenthal, however, is not a service provider, at least with respect to the newsgroups where she posted the Bolen article. This appears to be the first published case in which section 230 immunity has been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an "interactive computer service" under the broad definition provided in the CDA....Accordingly, we asked the parties to brief the meaning of the term "user" in section 230...."

The Court also examined the appellate court's interpretation of the words "publisher" and "distributor." "The Court of Appeal acknowledged that publication is an element of defamation, and the "distributors" are sometimes referred to as "secondary publishers."...However the court pronounced it "reasonable to assume" that Congress had in mind the different standards of common law liability imposed on "primary publishers," who have control over content, and "distributors," who do not. Thus, the omission of any reference to "distributors" in section 230(c)(1) was arguably intentional....The Court of Appeal...deemed the term "publisher" ambiguous, because it might both primary publisher and distributors....It found nothing in the statutory findings and declarations to indicate that Congress considered online speech in need of blanket protection. Indeed, it detected a contrary intent in the terms of section 230(c)(2)....

"We conclude the Zeran court's construction of the term "publisher" is sound....We are not convinced...that a  broad reading of section 230(c)(1) would make section 230(c)(2) unnecessary. These provisions address different concerns."

The Court spent a good deal of time examining the available legislative history for section 230 as well as cases available (Cubby, Stratton Oakmont) and law review articles. Next it considered the effects of imposing notice liability on service providers. Finally, it considered whether "users" under 230 should be lumped together with "publishers." "A user who actively selects and posts material based on its content fits well within the traditional role of "publisher." Congress has exempted that role from liability. As Rosenthal points out, the congressional purpose of fostering free speech on the Internet supports the extension of section 230 immunity to active individual "users." It is they who provide much of the "diversity of political discourse," the pursuit of "opportunities for cultural development," and the exploration of "myriad avenues for intellectual activity" that the statute was meant to protect....A user who removed some offensive content might face liability for "actively selecting" the remaining material....We conclude there is no basis for deriving a special meaning for the term "user" in section 230(c)(1)....By declaring that no "user" may be treated as a "publisher" of third party content, Congress has comprehensively immunized republication by individual Internet users."

The case is Barrett v. Rosenthal, S122953, 2006 Cal. LEXIS 13529, 2006 WL 3346218 (Nov. 20, 2006)

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