Not thy commenter's keeper

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.

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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  • Perfect shield

    So, if the case goes as expected, it becomes possible to defame anyone online as long as you only quote defamatory writings or speech. The art of untouchable defamation will consist of nothing more than finding something sufficiently vile to repeat.

    That's a very large expansion of the usual protections, since "editing" also consists of selection (at least until now.)
    Yagotta B. Kidding
    • And what would be the problem with that?

      I do not think you have considered the issue through properly here. I understand how on first consideration it simply appears that this is nothing more then a shield against defamation but a closer examination of the reality of the situation shows something much different.

      First of all the law would only protect ?protecting those who provide a platform for, but do not ?AUTHOR OR EDIT?, third party comments online.?

      The author or edit qualification is critical here. There is no way the law should be able to ever punish someone for doing nothing more then repeating a story given to them. Now if one is to add personal opinion to that story then perhaps that personal opinion is worthy of attack, but think of the different possibilities that arise under such a situation.

      Let us suppose the original story is from Jane Doe and it is; ?John Smith killed his wife in cold blood?. There are several different ways this story could be repeated by Bob Johnson;

      1. ?Jane Doe told me that ?John Smith killed his wife in cold blood? but that is a complete and utter lie?.
      2. ?Jane Doe told me that ?John Smith killed his wife in cold blood? and I believe that?s true and it shows the kind of person John Smith is?.
      3. ?Jane Doe told me that ?John Smith killed his wife in cold blood??.

      Now the first statement isn?t likely to get Bob Johnson in trouble with John Smith, even though he is adding his own editorial comments, as he is defending Mr. Smith and refuting the statement he has repeated.

      The second statement is likely to get Mr. Johnson in hot water with Mr. Smith as he is adding his own editorial commentary, basically adopting the statement as his own and therefore is going to be held accountable for expressing what he has claimed to be not only the opinion of another but himself as well.

      The final statement is the kind we are dealing with in this court case. Bob Johnson is neither refuting nor adopting any part of the statement and is simply relaying it, much in the same way news is supposed to be relayed.

      One can make all the noise and screaming they want about ?how it appears? or ?what impression is made? or ?what the implication is? when someone publishes or repeats a nasty statement, but there is no way the law should be allowed to prosecute someone in a type 3. statement situation. When there are real transgressions they have to be looked at individually to ensure you are not dealing with a type 2. statement.
  • How does this issue compare...

    ... to the guilty finding in the case of the web site which only linked to a foreign site offering code to overcome DRM?

    The principle appeared to be You link it, you own it. Copying appears to establish ownership even more directly.

    Anton Philidor
    • re: How does this issue compare...

      I think you may be confused about the outcomes of the DeCSS cases; see:

      These cases, in any event, attempted to assert direct liability against the authors of the problematic material. Barrett v. Rosenthal and other Section 230 cases is consider the extent to which online service providers are protected from indirect liability for the potentially defamatory activities of others. (Re copyright infringement, Section 512 of the DMCA instead comes into play.) The pivotal questions are whether the defendant qualifies for protection, and to what extent the defendant played an active role (as opposed to one of a mere passive host/conduit) in creating the material.
      Denise Howell
      • Not California cases.

        I was thinking about the New York Universal Cities case:

        Eight major motion picture companies filed injunction complaints in New York against three alleged hackers to prevent them from publishing DeCSS and later to stop them from linking to hundreds of mirror websites containing DeCSS.

        Defendant's attorneys argued that posting of DeCSS was protected under the First Amendment, which guarantees freedom of speech and the press.

        Judge Kaplan's August 2000 93-page ruling prevents defendants from not only distributing copies of DeCSS, but also from linking to Websites where it resides. The decision was upheld by the Second Circuit Court of Appeals.

        Defendants announced that they will not seek U.S. Supreme Court review of the court order, ending the two-and-a-half year legal battle over DeCSS in New York.
        Anton Philidor
        • re Not California cases

          Remeirdes is a DMCA case, and the DMCA has its own safe harbor against liability for third party acts (see Section 230, at issue in Barrett v. Rosenthal, carves out federal criminal liability and intellectual property law from the scope of its protection.
          Denise Howell