Calif. court ruling seeks to protect bloggers, Web publishers

In a victory for bloggers, newsgroup participants and other Web publishers, the California Supreme Court ruled Monday that individual Internet users cannot be held liable for republishing defamatory statements written by others.

The unanimous ruling appears to be the first to make clear that a 1996 law called the Communications Decency Act protects not only providers, but also users of online services who redistribute content. Earlier court rulings had established that Section 230 of that statute shields companies such as AOL and eBay from such liability, provided that they make good faith efforts to restrict access to material that could be considered "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."

By passing that law, Congress "has comprehensively immunized republication by individual Internet users," intending "to protect online freedom of expression and to encourage self-regulation," the justices concluded in their majority opinion (click for PDF) penned by Associate Justice Carol Corrigan.

The justices acknowledged that "recognizing broad immunity for defamatory republications on the Internet has some troubling consequences." But 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," they wrote.

That protection should not extend, however, to users who conspire with the originators of libelous content, Associate Justice Carlos Moreno wrote in a concurring opinion.

"One engaged in a tortious conspiracy with the original information content provider is hardly one of the neutral 'intermediaries' that Congress intended to absolve of liability," he wrote, adding that he did not believe that sort of activity took place in the case at hand.

The case dates back to 2000, when two doctors who operated Web sites devoted to exposing health frauds sued Ilena Rosenthal, director of a foundation for women and founder of a decade-old Internet newsgroup for women who have had problems with breast implants.

Dr. Stephen Barrett, who runs the site Quackwatch, and Dr. Terry Polevoy accused Rosenthal and others of committing libel "by maliciously distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs' character and competence and disparaging their efforts to combat fraud," according to the state Supreme Court opinion. In particular, Rosenthal had republished on two newsgroups a report by another author who accused Polevoy of stalking a Canadian radio producer.

A California state court sided with Rosenthal, but an appeals court determined that Rosenthal should be held liable as a "distributor" of the allegedly defamatory information.

In the offline world, common law makes a distinction between "publishers," such as newspapers and books, and "distributors," such as newspaper vendors and book sellers. Distributors are considered liable only if they were given notice of a defamatory statement in their merchandise.

But transferring such distinctions to the online world could chill free speech, the state Supreme Court ruled. "The volume and range of Internet communications make the 'heckler's veto' a real threat under the Court of Appeal's holding," the justices wrote.

The high court said it based its decision on a string of earlier cases that immunized online service providers. Perhaps most famously, federal courts found AOL was not liable in a suit first brought in April 1996 by a man named Kenneth Zeran, who claimed the company did not act fast enough to remove defamatory postings directed at him. The same provision of the law also led courts to side with eBay in 2001 amid claims that the online auctioneer should have been doing more to vet the authenticity of sports memorabilia offered by its sellers.

Rosenthal's position had drawn supporting briefs from Internet service providers, law professors and advocacy groups like the American Civil Liberties Union and Electronic Frontier Foundation.

EFF attorney Lee Tien, who co-authored the San Francisco-based group's 2004 brief, applauded the ruling, but said the case never should have had to reach the state Supreme Court level.

"It's so patently obvious that users are protected by the plain language and policy of 230," he said in an e-mail interview.