Barrett v. Rosenthal

DATE: November 20, 2006

COURT: Supreme Court of California (Opinion by Corrigan, J. in which George, C.J., and Kennard, Baxter, Werdegar, Chin and Moreno, JJ concur. Concurring opinion filed by Moreno, J.)

PLAINTIFFS: Dr. Stephen J. Barrett and Dr. Terry Polevoy

DEFENDANT: Ilena Rosenthal

AMICUS CURIAE: Electronic Frontier Foundation, American Civil Liberties Union Foundation of Northern California, eBay Inc. (individual),, Inc., America Online, Inc., eBay Inc. (joint), Google Inc., Microsoft Corporation, Yahoo! Inc., ABC, Inc., Ask Jeeves, Inc., Cable News Network LP, LLLP, Compuserve Interactive Services, Inc., Earthlink, Inc., ESPN, Inc., Netscape Communications Corporation, SBC Internet Services, Time Warner Cable Inc., The Washington Post Company, Association for Competitive Technology, California Newspaper Publishers Association, Information Technology Association of America, Internet Alliance, Internet Commerce Coalition, National Cable & Telecommunications Association, Netchoice, Netcoalition Newspaper Association of America, Online News Association, Online Publishers Association, TechNet and United States Internet Service Provider Association, and “Law Professors with Expertise in Internet Law”

MATERIAL ALLEGATIONS: “Plaintiffs, Dr. Stephen J. Barrett and Dr. Terry Polevoy, operated Web sites devoted to exposing health frauds. Defendant Ilena Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Plaintiffs alleged that Rosenthal and others committed libel by maliciously distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs’ character and competence and disparaging their efforts to combat fraud. They alleged that Rosenthal republished various messages even after Dr. Barrett warned her they contained false and defamatory information.”

The trial court “determined that the only actionable statement appeared in an article Rosenthal received via e-mail from her codefendant Tim Bolen. This article, subtitled “Opinion by Tim Bolen,” accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of this article on the Web sites of two newsgroups devoted to alternative health issues and the politics of medicine, not on the site of her own discussion group.”

CAUSES OF ACTION: Libel, libel per se, and conspiracy

PROCEDURAL HISTORY: The Superior Court, Alameda County, James A. Richman, J., granted defendant’s special motion to strike complaint under anti-SLAPP statute. Doctors appealed. The Court of Appeal vacated in part and affirmed in part.

PROCEDURAL ACTION TAKEN HERE: Judgment of Court of Appeal reversed.

OUTCOME: While acknowledging “troubling consequences,” the Court concluded that “section 230 prohibits “distributor” liability for Internet publications. “We further hold that section 230(c)(1) immunizes individual “users” of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use . . . [thus] Rosenthal is immune from liability under section 230.”

OPINION: The California Supreme Court considered whether “section 230 confers immunity on “distributors,” and ultimately agreed “with the Zeran court that Congress did not intend to create such an exception to section 230 immunity.” . . . Specifically, the Court concluded that “the Zeran court’s construction of the term “publisher” is sound. The terms of section 230(c)(1) are broad and direct . . . Given that “distributors” are also known as “secondary publishers,” there is little reason to believe Congress felt it necessary to address them separately. There is even less reason to suppose that Congress intended to immunize “publishers” but leave “distributors” open to liability, when the responsibility of publishers for offensive content is greater than that of mere distributors. The Court of Appeal failed to respond to the Zeran court’s point that once online distributors are notified of defamatory content, they are placed in a position traditionally occupied by publishers, and must make an editorial decision on how to treat the posted material. This is a persuasive justification for giving the term “publisher” an inclusive interpretation.” The Court added that “subsequent legislative history contains explicit support for the Zeran court’s interpretation.”

The Court also considered but rejected the Court of Appeal’s reasoning relating to Section 230(c)(2), the DMCA notice provision, the distinction between traditional print publishers and distributors, and its construction of the statute’s legislative history. The Court offered the following on Congress’ intent:

Both the terms of section 230(c)(1) and the comments of Representative Cox reflect the intent to promote active screening by service providers of online content provided by others. Congress implemented its intent not by maintaining the common law distinction between “publishers” and “distributors,” but by broadly shielding all providers from liability for “publishing” information received from third parties. Congress contemplated self-regulation, rather than regulation compelled at the sword point of tort liability. It chose to protect even the most active Internet publishers, those who take an aggressive role in republishing third party content. It would be anomalous to hold less active “distributors” liable upon notice. Thus, the immunity conferred by section 230 applies even when self-regulation is unsuccessful, or completely unattempted.

The Court also highlighted the “three deleterious effects that would flow from reading section 230 to permit liability upon notice,” which were first identified in Zeran, concluding that “[t]he Court of Appeal gave insufficient consideration to the burden its rule would impose on Internet speech.”

Accordingly, the Court “agree[s] with the Zeran court, and others considering the question, that subjecting Internet service providers and users to defamation liability would tend to chill online speech. . . . Congress intended to create a blanket immunity from tort liability for online republication of third party content.” The Court added that a divergent rule would “be an open invitation to forum shopping by defamation plaintiffs.”

Separate from the distributor analysis, the Court noted that defendant “is not a service provider, at least with respect to the newsgroups where she posted the Bolen article. This appears to be the first published case in which section 230 immunity has been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an “interactive computer service” under the broad definition provided in the CDA.” Regardless, the Court concluded that “Congress employed the term “user” to refer simply to anyone using an interactive computer service, without distinguishing between active and passive 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.”