Not thy commenter's keeper

Summary:Based on the reactions of many of those who attended oral argument before the California Supreme Court in Barrett v. Rosenthal, indications are strong that the Court will come down on the side of protecting those who provide a platform for, but do not author or edit, third party comments online.

Based on the reactions of many of those who attended oral argument before the California Supreme Court in Barrett v. Rosenthal, indications are strong that the Court will come down on the side of protecting those who provide a platform for, but do not author or edit, third party comments online.  We will know for sure by the first week of December.  If you are unfamiliar with the case, here's what it involves (courtesy of EFF):

The question is a libel suit filed against women's health advocate Ilena Rosenthal after she posted a controversial opinion piece on a Usenet news group. The piece was written not by Rosenthal, but by Tim Bolen, a critic of plaintiff Terry Polevoy. A hearing before the California Supreme Court is set for September 5, 2006.

In their brief, EFF and the ACLU argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors.

Lawyers for the plaintiffs 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. If the court finds in favor of the plaintiffs, the implications for free speech online are far-reaching. Bloggers could be held liable when they quote other people's writing, and website owners could be held liable for what people say in message boards on their sites. The end result is that many people would simply cease to publish or host websites. In its brief, EFF argues that "the specter of civil liability chills the speech" of Internet service providers and users, and will inevitably lead to "protective self-censorship."

"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 email 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."

In March, Jennifer Peterson had a good explanation of why Courts are likely to extend Section 230's protections to blogs and bloggers as to blog commenters, even though the cases to date have involved things like message boards and news groups:

Section 230 has not yet been judicially construed in the context of a blog, but the policies underlying Congress's enactment of the law may encourage courts to extend immunity to bloggers. First, "[s]ection 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum."  Encouraging "robust" discourse by bloggers, therefore, is consistent with the purpose of section 230 and, not incidentally, the First Amendment. Yet, it cannot be said that Congress intended to provide absolute immunity to those who communicate on the Internet.

Second, "[a]nother important purpose of [section] 230 [is] to encourage service providers to self-regulate the dissemination of offensive material over their services."  Under section 230, a service provider is immune from claims stemming from "the exercise of its editorial and self-regulatory functions."  If section 230 applies, therefore, a blogger would be encouraged to exercise his editorial function and remove from his blog potentially defamatory comments made by third parties.  [Endnotes omitted.]

The same can be said about podcasts and podcasters as to podcast commenters (of both the audio and video variety), though I do have some concern about how courts will deal with these forms of communications, which, though they reside on and are distributed via the Internet, often have other homes and distribution channels as well.  When the issue eventually comes up, the relationship between existing case law and these nontextual media will need to be clearly mapped out for the courts.  [Updated September 11, 2006 @ 12:43 pm:]  See Joint Statement of Podcasting Organizations and Podcasters on the Proposed Wipo Treaty for the Protection of Broadcasts and Broadcasting Organizations.

First hand reports from, and takes on, the oral argument proceedings are available from:

You can also sign up with the California Supreme Court to receive immediate email notification when the decision issues.

Topics: Legal


Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. For further details please see her professional background and speaking schedule. Denise's career is characterized by her passionate engagement in intell... Full Bio

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