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Defamation unlikely to be expanded in CA

ISPs are protected against defamation suits by federal law. A case in CA would undercut that protection. But the California Supreme Court signaled they will overturn a lower court decision.
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Written by Richard Koman on

Can ISPs or bulletin boards be held responsible for libelous content posted by users? A California appeals court said they could and the issue is now before the California Supreme Court.

While it's well-settled that the federal Communications Decency Act protects ISPs from defamation actions, California's 1st Appellate Division ruled that service providers are liable if they knew or had reason to know a posting was libelous and failed to remove it, the San Francisco Chronicle reports.

In oral arguments yesterday, the Supreme Court expressed doubt that the appeals court was on solid ground.

Chief Justice Ronald George asked how the Internet could function if providers had to investigate the truthfulness of the messages they displayed. Justice Joyce Kennard noted that plaintiffs can sue the authors of libelous messages or post their own replies online. Justice Ming Chin said there was a "startling lack of legal authority" for such suits.

But plaintiffs lawyer Christopher Grell said the Internet could be preserved as a forum "without requiring the total sacrifice of a person's reputation." Victims of anonymous but widely disseminated smears would have no recourse, he said, if they couldn't sue Internet service providers.

The defendant, Ilena Rosenthal, reposted on dozens of bulletin boards allegedly libelous material about the plaintiffs, two doctors. For purposes of the suit, Rosenthal claims to be a service provider and thus protected under the Communications Decency Act. The question is whether she, as a user, is deserving of the same protection as an ISP clearly is.

The Supreme Court clearly felt that she is. And Internet companies filed in force to support her, Law.com reported.

"If, simply by receiving 'notice,' service providers were potentially liable for the unimaginable volume of third-party content that constantly flows through their services," the companies' lawyer, Samir Jain, wrote, "they would have little choice but to automatically and immediately take down and block third-party content in response to virtually all complaints."

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