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Everyday Users, er, Distributors, Of The Internet Immune From Libel Law For Now

Say what you will, if you're in California surfing the Internet, that is.  What do I mean? 

The California Supreme Court decided to insulate Internet "distributors" of statements defaming others, as long as that distributor did not originate the defamatory statement. 

Hold your horses, here. 

Let's get to the facts.  In the case of Barrett v. Rosenthal, Dr. Stephen Barrett and Dr. Timothy Polevoy operated Internet sites, one named Quackwatch, aiming to expose health frauds.  The two Doctors claimed Ilena Rosenthal committed libel against them by maliciously distributing defamatory statements in e-mails and Internet postings, discrediting their efforts to eliminate this type of fraud.  Ms. Rosenthal operates a site she's dubbed Quackwatchwatch

There's a long history of disputes involving both parties, and this post won't touch the merits of either.  MIPTC wants to address the legal significance of the decision. 

Think about this one for a moment:  typical tort law punishes both the originator and the person who republishes the defamatory statement.  As the California Supreme Court notes in its opinion, "At common law, 'primary publishers,' such as book, newspaper, or magazine publishers, are liable for defamation on the same basis as authors. Book sellers, news vendors, or other 'distributors,' however, may only be held liable if they knew or had reason to know of a publication's defamatory content."

The Communications Decency Act of 1996 says, "No 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." 47 U.S.C. 230(c)(1).  The California Supreme Court took its lead in our case from the Fourth Circuit Court of Appeals in Zeran v. America Online, Inc.

Don't get too excited here, though.  It's pretty obvious that our Ms. Rosenthal wouldn't qualify as a Internet Service Provider.  She is an everyday user, just like you and me.  That's where the California Supreme Court opinion turns.  As a user (read:  "distributor"), the Court ruled, she's exempt from republishing defamatory statements.


That's right.  Exempt.

So you don't stray too far from the analysis, in Zeran, the Fourth Circuit ruled that section 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.'  In Zeran, AOL got sued by Kenneth Zeran after it failed to quickly remove postings that told users to call Mr. Zeran's telephone regarding t-shirts for sale that bore offensive slogans about the Oklahoma City bombing.  The Fourth Circuit essentially believed that AOL was exempt from liability for postings by third parties, as set out in the statute.

But that's where the similarity with our case appears to end.  Here, Ms. Rosenthal was a user, not a provider.  She republished what she had been told were defamatory statements, presumably by another information content provider. 

The case turns standard tort law on its head, all in the name of an unclear statute.  Wait for Congress to straighten this one out or see if the U.S. Supreme Court will take it up.  There's one question that still needs an answer:  where is the word "distributor" in section 230?

Posted by J. Craig Williams on Monday, November 20, 2006

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