The ruling, which overturns a lower court's ruling on internet
libel, covers publishers of other people's comments, such as blogs,
discussion lists, ISPs and individuals running their own sites. It
says that a libelled person must sue the individual who made a
libellous comment, not the person or company who allowed it to be
published.
The ruling was made in a case taken by two doctors against Ilena
Rosenthal. Rosenthal posted an email from someone else relating to
a Dr Barrett to a newsgroup. Barrett sued for defamation but the
case was dismissed. That dismissal was overruled by the California
Court of Appeal, but the California Supreme Court in turn reversed
that ruling and said that Rosenthal was not liable.
The case concerned Section 230 of the Communications Decency
Act, a section which says that "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".
"Courts have consistently interpreted Section 230 to provide
broad protections for the platforms upon which free speech has
flourished online," said Kurt Opsahl, a staff attorney at the
Electronic Frontier Foundation, the digital rights body which filed
a brief in support of Rosenthal.
"By reversing the Court of Appeal, the California Supreme Court
has brought California back in line with other jurisdictions and
reaffirmed the critical rule that the soapbox is not liable for
what the speaker has said."
Justice Carol Corrigan said in the ruling that the law had been
drafted in order to protect free speech. "The prospect of blanket
immunity for those who intentionally redistribute defamatory
statements on the internet has disturbing implications," she wrote.
"Nevertheless, by its terms section 230 exempts Internet
intermediaries from defamation liability for republication. The
statutory immunity serves to protect online freedom of expression
and to encourage self-regulation, as Congress intended."
The case was the first in which section 230 immunity has been
invoked by an individual who had no supervisory role in the
operation of the website where allegedly defamatory material
appeared. The immunity's protection of service providers had
already been established when an individual, Kenneth Zeran,
unsuccessfully sued AOL for unreasonable delay in removing
defamatory messages.
The email posted by Rosenthal, which Dr Barrett* said was defamatory, said that "Dr
Barrett is arrogant, bizarre, closed-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…" and continued in a similar vein. A
similar statement was published about a Dr Polevoy.
The court noted that, "At some point, active involvement in the
creation of a defamatory Internet posting would expose a defendant
to liability as an original source. Because Rosenthal made no
changes in the article she republished on the newsgroups, we need
not consider when that line is crossed."
Struan Robertson, editor of OUT-LAW.COM and a technology lawyer
with Pinsent Masons, said the case highlights a major difference
between US law and UK law on the duty to remove defamatory
postings.
"In the UK, service providers have a duty to remove or block
access to defamatory material that they host once they are made
aware of it. They can be sued if they fail to do so expeditiously,"
he said. "The same approach is taken across Europe; but the US
considers this to be an impossible burden on service providers and
anathema to free speech."
Robertson said this leaves victims of defamation in an
impossible situation. "Under US law, you can sue your defamer but
you can't force a third party to take the offending comments
off-line. This is inconsistent with US law on copyright, where a
statutory notice-and-takedown procedure gives effective remedies to
rights holders."
Judge Corrigan acknowledged section 230's immunity has "some
troubling consequences" but wrote: "Until Congress chooses to
revise the settled law in this area … plaintiffs who contend they
were defamed in an Internet posting may only seek recovery from the
original source of the statement."
* Editor's
note, 27/11/2006: This story originally stated that
the court said the comments about Dr Barrett were defamatory.
However, as Ilena Rosenthal pointed out to OUT-LAW today, it was Dr
Barrett's complaint that said these comments were defamatory. We
apologise to Ms Rosenthal for this inaccuracy. The story has
been corrected today.
