California Upholds Online Free Speech

Internet providers and individual users are exempt from libel laws if the material they post or distribute is written by others, the California Supreme Court ruled Monday.

In a unanimous ruling, the court said the Communications Decency Act (CDA) of 1996 clearly provides a legal safe harbor for those who republish comments by others, even if the comments are highly inflammatory or libelous.

“The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications,” Justice Carol Corrigan wrote in the opinion. “Nevertheless, [the CDA] exempts Internet intermediaries from defamation liability for republication.”

The ruling is a major victory for online free speech advocates who rallied behind the defendant in Stephen J. Barrett v. Ilena Rosenthal.

Barrett, a medical doctor and Dr. Timothy Polevoy, who operated a Web site devoted to medical fraud, filed a defamation and malicious libel lawsuit against Rosenthal, who is the director of the Humantics Foundation for Women and who runs an online alternative medicine discussion group.

She allowed comments in the discussion group from a third party that were highly unfavorable to Barrett and Polevoy.

In the posting, Barrett is described as “arrogant, bizarre, closed-minded, emotionally disturbed, professionally incompetent, intellectually dishonest, a dishonest journalist, sleazy, unethical, a quack, a thug, a bully, a Nazi” and a “hired gun for vested interests.”

Barrett claims Rosenthal continued to republish third-party comments even after he warned her the comments contained false and defamatory statements.

The district court upheld the CDA, which states, “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.”

The CDA further adds, “No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.”

The California Court of Appeals, however, ignored all previous court rulings on the CDA immunity for republishers, reinstating the case and prompting the California Supreme Court to intervene.

The Court of Appeals’ ruling was based on a common law interpretation of a “distributor” and potentially exposed providers like Google, Yahoo and Microsoft to libel lawsuits if they republish a statement after receiving notice of its possible defamatory nature.

“We conclude that [the CDA] prohibits ‘distributor’ liability for Internet publications,” the California Supreme Court said in overturning the Court of Appeals decision. “We further hold that [the CDA] immunizes individual ‘users’ of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use.”

The court said that until Congress chooses to revise the “settled law in this area,” plaintiffs who claim to be defamed or libeled in an Internet posting can only seek recovery from the original source of the statement.

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