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Defamation for 3rd party statements: case continues


Civil rights groups have warned the California Supreme Court that an adverse ruling in a case concerning the liability of an individual who posted a statement made by another person on an internet newsgroup would chill the free speech rights of internet users.

The case concerns a defamation suit brought against Ilena Rosenthal, Director of the Humantics Foundation in San Diego, a breast implant awareness organisation, after she re-posted a third-party's statements on the internet. These, it was alleged, defamed Terry Polevoy, an opponent of "quackery, health and diet fraud".

The case turns on both the interpretation of a provision (Section 230) in the US Communications Decency Act, which grants immunity from suit to those who provide material on the internet that was written by others, and a January ruling by the California Court of Appeal for the First District that found Rosenthal guilty of defamation.

Rosenthal appealed to the State Supreme Court, and in April the Supreme Court agreed to hear the case.

Lawyers for Polevoy argue that Rosenthal is liable because posting the comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit.

But in November civil rights groups the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Northern California (ACLU) filed a friend of the court brief, supporting Rosenthal's case.

In their brief, EFF and the ACLU argued that prior to the Appeals Court ruling, similar attempts to eliminate the protections created in the Act had been almost universally rejected.

If the court finds in favor of the plaintiffs, the implications for free speech on-line are far-reaching, said the brief. Bloggers could be held liable when they quote other people's writing, and web site owners could be held liable for what people say in message boards on their sites. The end result, according to the groups, is that many people would simply cease to publish or host web sites.

"Every other jurisdiction addressing Section 230 has given effect to Congress' broad protections and internet speech has flourished as a result," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeals upset this settled law and we are simply asking the California Supreme Court to set things right."

"Section 230 protects the ordinary people who use the internet and e-mail to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," said ACLU Staff Attorney Ann Brick.

"The vitality of the internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable," she added.

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