Briefs Filed in Internet Libel Case

Jeff Berg
SAN FRANCISCO — The Electronic Frontier Foundation and the American Civil Liberties Union of Northern California filed a brief last week with the California Supreme Court in support of a woman who reposted allegedly defamatory statements on Usenet and was subsequently sued for libel.

The Supreme Court’s ruling, which will deal with whether bloggers, Internet service providers and others who repost third-party content on the Internet are given immunity under section 230 of the federal Communications Decency Act, could have grave implications for free speech on the Internet, according to attorneys.

“The vitality of the Internet would quickly dissipate if the posting of content written by others created liability,” said ACLU staff attorney Ann Brick. “The impulse to self-censor would be unavoidable.”

The underlying case revolves around Ilena Rosenthal, director of the Humantics Foundation for Women, and comments from alternative medicine activists Tim and Jan Bolen that allegedly contained defamatory remarks about Dr. Stephen J. Barrett and Dr. Terry Polevoy, who describe themselves as “Quackbusters.”

In August 2000, Rosenthal reposted on Usenet an email message she had received from Tim Bolen that allegedly accused Polevoy of “stalking women,” and urged readers to file complaints with a variety of regulatory groups.

Barrett and Polevoy notified Rosenthal that the message was false and asked that it be removed.

Rosenthal refused and posted additional messages on Usenet about the request.

The case was initially dismissed by superior court, but partially reversed in appellate court.

According to the appellate court’s ruling, Polevoy could continue with his case against Rosenthal because federal law should not invalidate the common-law principle that someone can be liable for defamation if they should have reasonably known that the statements in question were false.

“The foundation of any democratic society is human decency, and the right to protect one’s name and reputation lies at the heart of that,” Christopher Grell, attorney for both Barrett and Polevoy, told the Tri-Valley Herald.

The EFF and ACLU argue that limiting the scope of federal immunity for online publications might chill free speech.

“Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don’t like what was said about them,” said Brick.

According the brief filed by the EFF and ACLU, the proper recourse would be to sue the original information producer and not those who redistribute the information.

The case is Barrett et al. vs. Rosenthal, A096451.