CivicActions

In a significant victory for free speech on the Internet, the California Supreme Court has ruled that ISPs, bloggers, and others netizens may not be held liable for publishing false and damaging material authored by someone else. Only the original authors of defamatory speech – not those who republish the defamation -- can be found liable.

The court’s decision came in the case of Barrett v. Rosenthal, and affirms that blogs, websites, listservs, ISPs like Yahoo! -- as well as individuals like the defendant Ilena Rosenthal -- are protected under Section 230 of the federal Communications Decency Act (CDA), which explicitly states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The ruling overturns a lower appellate court decision that had stripped immunity against such lawsuits, alarming free speech advocates who worried it would chill free speech on the Internet.

This bright line test will mean that Internet publishers will have much greater protection from legal attack than their fellows in print media. For example, the San Francisco Chronicle can safely publish a defamatory quotation on its web site, and yet be held liable for publishing the same quote on newsprint.

This dichotomy seemed to trouble the justices: `We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences,'' Justice Carol Corrigan wrote for 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 decision underscores Congress’ judgment that the Internet is a fledgling medium deserving of greater protection than other, more traditional forums for the exercise of speech.

The case stems from a libel suit filed by two doctors who operated Web sites devoted to exposing health care fraud. The defendant, Ilena Rosenthal, is a women's health advocate, who ran a Usenet discussion group. She was sued after posting another person's e-mail that callied the doctors ``quacks'' and ``dishonest.''

The primary legal issue before the Supreme Court was whether Section 230's sweeping protection applies to individuals who – like Rosenthal – regularly use the Internet to post comments from others.

Essentially, the Court held that Section 230 means just what it says, and applies to "users" of interactive computer services as well as "providers."

As broadly upheld by the court, Section 230 protects Internet publishers from liability for defamatory comments written by others. Prior attempts to eliminate the protections created by Section 230 had almost universally been rejected, until a California Court of Appeals panel, ruling in Barrett v. Rosenthal, dramatically narrowed the statutory protections to allow lawsuits against non-authors. The high court reversed this ruling.

Rosenthal was represented by Mark Goldowitz of the California Anti-Slapp Project (“CASP), with whom I am associated. The ACLU-Northern California and the Electronic Frontier Foundation (EFF) also filed amicus briefs, as did Yahoo, The California Newspaper Association and other major media players.

A copy of the decision is attached.