Calif. Ruling Rejects Libel for Online Republishers

Michael Hayes
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 objectionable."

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.”

Attorney J.D. Obenberger told XBIZ he disagreed with the ruling.

"I think it's a nutty decision because it creates a plenary immunity for wilful defamation from a statute meant to restrict, rather than to enhance speech," he said. "It leaves the victims of intentional, malicious lies without remedy or recourse for the republication of hurtful lies about them by persons who know the statements to be harmful lies."

According to Obenberger, the decision builds in the direction of irresponsibility for webmasters.

"The California Supreme court has taken an anti-free speech statute and found in it a cart blanche to knowingly publish defamatory material, so long as the publisher is not the author."

In the 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.