California Supreme Court says individuals not liable for defamatory online third party acts

California Supreme Court says individuals not liable for defamatory online third party acts

Summary: In a controversial and somewhat rogue decision, in Barrett v. Rosenthal the California Court of Appeal found a newsgroup user subject to defamation liability for posting a third party's comments. In a decision that brings California law in line with the realities of modern Internet usage and recognizes the desire of Congress to protect online speech, the state's Supreme Court has reversed this decision.

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TOPICS: Legal
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The California Supreme Court's opinion in Barrett v. Rosenthal issued today, and, as was widely anticipated, the Court reversed the appellate decision that was under review.  Although the case involved a newsgroup posting, today's decision is nevertheless excellent news for bloggers, and brings California law in line with that of other jurisdictions that have likewise found Section 230 of the Communications Decency Act to be a shield for Internet publishers against defamation claims related to the statements of third parties.  The Court concluded (PDF) that the mere fact a publisher may be on notice of the potentially defamatory nature of third party material does not destroy the applicable statutory immunity:

The great variety of Internet publications, and the different levels of content control that may be exercised by service providers and users, do not undermine the conclusion that Congress intended to create a blanket immunity from tort liability for online republication of third party content.  Requiring providers, users, and courts to account for the nuances of common law defamation, and all the various ways they might play out in the Internet environment, is a Herculean assignment that we are reluctant to impose.  We conclude the Zeran court accurately diagnosed the problems that would attend notice-based liability for service providers.   [Slip opinion, p.26]

The Court further wisely decided that Congress intended Section 230's immunity to apply equally to "distributors" and individual users of interactive computer services, or, more precisely, that no meaningful distinction exists:

As Rosenthal points out, the congressional purpose of fostering free speech on the Internet supports the extension of section 230 immunity to active individual "users."  It is they who provide much of the "diversity of political discourse," the pursuit of "opportunities for cultural development," and the exploration of "myriad avenues for intellectual activity" that the statute was meant to protect.  (§ 230(a)(3).)  The approach taken by the Batzel dissent would tend to chill the free exercise of Internet expression, and could frustrate the goal of providing an incentive for self-regulation.  A user who removed some offensive content might face liability for "actively selecting" the remaining material.  Users in this position, no less than the service providers discussed by the Zeran court, would be motivated to delete marginally offensive material, restricting the scope of online discussion.  Some users, at least those like Rosenthal who engage in high-volume Internet posting, might be discouraged from screening third party content.  Although individual users may face the threat of liability less frequently than institutional service providers, their lack of comparable financial and legal resources makes that threat no less intimidating.

We conclude there is no basis for deriving a special meaning for the term "user" in section 230(c)(1), or any operative distinction between "active" and "passive" Internet use.  By declaring that no "user" may be treated as a "publisher" of third party content, Congress has comprehensively immunized republication by individual Internet users. [Slip opinion, p. 33]

This is a good decision for blogging and online discourse in general, one that helps ensure defamation claims can go forward where and against such parties as may be appropriate, without unduly chilling speech.  Kudos to EFF for its involvement.  More coverage from Professor Volokh, [updated, 11/21/06, 3:09 a.m.] Professor Goldman, Evan Brown, Peter Lattman, Danny at Beltway Blogroll, and Dan Gillmor.

It remains to be seen whether Section 230, which applies to the "Internet and other interactive computer services," will be found to apply to podcasts and videocasts.  As I read the Act's definitions it should, but you never know.

Topic: Legal

Denise Howell

About Denise Howell

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.

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  • Well it makes since to me

    After all why should I be held liable for what someone else said? and making me liable would stifle free speech ...
    Just my 2 cents worth ...
    Pyvent