Thursday, November 23, 2006


LIBEL: California high court gives some immunity to web publishers



Published: November 21, 2006

The California Supreme Court said yesterday that Internet publishers could not be held liable if they posted defamatory comments written by others, a victory for online companies like Google and AOL.

The court, in a unanimous decision, said those claiming defamation could sue only the original source of the comments, not publishers or distributors, even if the distributor was an individual. Internet users are protected by the same 1996 Communications Decency Act that grants immunity against defamation claims to publishers in most circumstances, the court said, overturning a San Francisco appeals court.

The ruling means that plaintiffs claiming defamation cannot get around the 1996 federal law by filing state suits. Internet service providers, search engine companies and civil liberties groups said that holding Web
publishers liable would force Internet companies to keep track of every posting in every discussion group.

The case represents the first time an individual sought the same immunity from defamation liability that is afforded to Internet service providers under federal law, the court said.

"It's good news for free speech on the Internet because the Internet can't be the vibrant forum for free speech that it's become if users and Internet service providers alike have to worry about getting sued when they republish something that someone else says," said Ann Brick, a lawyer with the American Civil Liberties Union.

The case involved a Web site operator who received and posted an e-mail message critical of a doctor.



California court rules on web defamation
Website owners 'not responsible for third-party comments'

By Iain Thomson, 21 Nov 2006

ADVERTISEMENTThe California Supreme Court has ruled that internet service providers and bloggers cannot be sued for third-party comments posted on their sites.

In the case of Barrett versus Rosenthal the court found that only the originator of the content could be sued, but that third parties who repost the material should be immune from prosecution.

The ruling has profound implications for the future of internet content. We acknowledge that recognising broad immunity for defamatory republications on the internet has some troubling consequences," said the court.

"Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an internet posting may only seek recovery from the original source of the statement."

The case stemmed from two doctors who ran websites debunking some alternative medicines and seeking to identify medical fraud.

Ilena Rosenthal, an alternative health practitioner, posted a letter from a third party on her website which accused the two doctors of being Nazis and " hired guns for vested interests", and suggested that both had
engaged in criminal activities.

The two doctors sued and the courts initially found in their favor. During her appeal Rosenthal received extensive support from Google, eBay, Amazon and free speech groups, and today's ruling was hailed as a victory for free speech.

"By reaffirming that Congress intended to grant protection to those who provide a forum for the views of others, the Court has ensured that the internet will remain a vibrant forum for debate and the free exchange of ideas," said Ann Brick, staff attorney at the American Civil Liberties Union of Northern California. "Any other ruling would have inevitably made speech on the internet less free."

The ruling does not protect the original poster of the comments, but found that internet sites should receive the same protections as "common carriers" like telephone companies rather than being seen as publishers
responsible for content.

"The Supreme Court's opinion strengthens protection for speech on the internet," said Mark Goldowitz, director of the California Anti-SLAPP Project and counsel for Rosenthal. "Justice Corrigan's opinion protects against the 'heckler's veto' chilling speech on the internet."



Calif. Ruling Rejects Libel for Online Republishers

By: Michael Hayes (Courtesy of

Posted: 11/21/2006

Sacramento, Calif. - In a decision that could have profound repercussions for web publishers, bloggers and anyone who posts to online message boards, the California Supreme Court said those who republish defamatory
statements online couldn.t be held liable.

The unanimous ruling deals with the 1996 Communications Decency Act. Earlier court rulings had construed Section 230 of the statute to provide a shield for companies such as AOL and eBay from liability for defamatory
remarks made by others, provided that the companies make a good faith effort to restrict access to material that could be considered "obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise

In drafting the law, Congress "has comprehensively immunized republication by individual Internet users, intending to protect online freedom of expression and to encourage self-regulation," Associate Justice Carol
Corrigan said.

The case arises out of allegedly libelous statements made online by Ilena Rosenthal, a women.s health advocate, who published a letter by co-defendant Tim Bolen attacking Pennsylvania psychiatrist Stephen Barrett
and Canadian doctor Terry Polevoy for their unfavorable views of alternative medicine.

Alameda County Superior Court Judge James Richman tossed the libel suit in 2001, but a San Francisco appellate court reinstated the case saying that an email from Barrett threatening to sue Rosenthal put her on notice that
she could be held liable for publishing Bolen's letter. That ruling prompted a range of online companies, including Earthlink and, as well as the Electronic Frontier Foundation, to file amicus briefs on behalf of Rosenthal and Bolen, arguing that imposing liability after a potential plaintiff sends email notice threatening to sue could
chill free speech.

While the court said, "recognizing broad immunity for defamatory republications on the Internet has some troubling consequences," the justices concluded that lawmakers would be the ultimate arbiters of the issue. "Unless Congress revises the law, anyone who claims to be defamed by an Internet posting may seek damages only from the original source of the statement," Corrigan said.

EFF attorney Lee Tien praised the decision, saying that "it's so patently obvious that users are protected by the plain language and policy of [Section] 230."

In decision, Corrigan noted that the defamation jurisprudence developed over the lengthy history of offline publishing isn.t always a source from which judges can rely upon without accounting for changes in technology.

In offline defamation cases, the law distinguishes between "publishers," such as newspapers, and "distributors," such as newsstands. Distributors can only be held liable if they are given notice of a defamatory statement
contained in the publications they sell.

Corrigan said transferring such distinctions to the online world could chill free speech because of the ease with which anyone could use the so-called "heckler's veto," thereby putting online publisher on notice and potentially opening them to liability.

Possibly leaving open a remedy for plaintiffs who are victims of particularly egregious conduct, Justice Carlos Moreno wrote in his concurring opinion that the law and the ruling should not be read to immunize Internet users who republish libelous speech if they have conspired with the originator of the statement.


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