In a victory for free speech on the internet, the California Supreme Court recently rejected the California Court of Appeal’s interpretation of § 230 of the Communications Decency Act (CDA), which would have imposed liability whenever an internet intermediary either knows or should have known of the defamatory nature of the material posted. Barrett v. Rosenthal, 2006 Cal. LEXIS 13529, (Cal. Supr. Ct., Nov. 20, 2006) (Corrigan, J.).
Section 230(c)(1) of the Communications Decency Act of 1996, states that "no provider or user of an interactive computer service" may be held liable for putting material on the internet that was written by someone else. An "interactive computer service" can be anything that provides multiple users with access to a computer server, such as the service provided by AOL and other Internet Service Providers (ISPs), newsgroups, interactive websites and even universities and libraries that provide Internet access to students or patrons. The statute has protected internet publishers from being held liable for allegedly harmful and/or defamatory comments written by others. Attempts to eliminate the protections afforded to internet providers under § 230 have been rejected by most courts.
Two doctors sued women’s health activist Ilena Rosenthal for libel and defamation, claiming she posted a defamatory article about them to an internet newsgroup. Because Rosenthal argued, inter alia, that § 230 protects her from liability because the published piece was authored by a third party. The trial court determined there was one actionable statement posted by Rosenthal. However, the trial court ruled that Rosenthal's "republication" was immunized under § 230.
In a radical departure from precedent, the California Court of Appeal decided that "common law ‘distributor’ liability survived the congressional grant of immunity [under § 230], so that Internet service providers and users are exposed to liability if they republish a statement with notice of its defamatory character." The California Court of Appeal vacated the district court’s order granting Rosenthal’s motion to strike as applied to one of the plaintiffs and held that § 230 did not protect Rosenthal. In doing so, the Court of Appeal rejected the established Fourth Circuit decision in Zeran v. America Online, Inc. In Zeran, the plaintiff sued AOL for posting defamatory messages. The Fourth Circuit sided with AOL, holding that § 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of that service." The California Court of Appeal rejected Zeran and reasoned that § 230 cannot abrogate "common law principle" that one who republishes defamatory statements originated by a third-party should be liable if "he or she knows or has reason to know its defamatory character." The Court of Appeal concluded that Congress intended to distinguish between "publishers" and "distributors," immunizing publishers but leaving distributors exposed to liability. In common law, "primary publishers," such as book, newspaper or magazine publishers, are liable for defamation on the same basis as authors. Book sellers, news vendors or other "distributors," however, may only be held liable if they knew or had reason to know of a publication’s defamatory content. Rosenthal appealed.
The California Supreme Court reversed, embracing instead the Fourth Circuit’s Zeran decision. The Supreme Court held that the publisher/distributor distinction, as far as the internet is concerned, made no difference for purposes of § immunity because "distributors" are also known as "secondary publishers." It held that § 230’s protection applies to ordinary individuals such as Rosenthal in the same way it applies to ISPs, website operators and bloggers. In addition, the Supreme Court reaffirmed that, in enacting § 230, Congress intended to provide very broad protection from liability to internet intermediaries that disseminate material written by others. In reaching that conclusion, the Court explicitly rejected the Court of Appeal’s interpretation of § 230, which would have imposed liability whenever an internet intermediary either knows or should have known of the defamatory nature of the material posted. The Court recognized that, rather than risk being sued, internet intermediaries will take down material whenever someone complains, thus giving a "heckler’s veto" to anyone objecting to controversial content.
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