Internet Library of Law
and Court Decisions

Stephen J. Barrett, et al. v. Ilena Rosenthal

Communications Decency Act Immunizes User Of Interactive Computer Service From Liability For Republishing Allegedly Defamatory Statement

Reversing the Court of Appeals, the California Supreme Court holds that Section 230 of the Communications Decency Act ("CDA") immunizes defendant Ilena Rosenthal ("Rosenthal") from defamation claims arising out of her republication in two online newsgroups of an allegedly defamatory article authored by a third party.  In reaching this result, the California Supreme Court rejected the Court of Appeals' attempts to limit the immunity afforded by Section 230(c)(1) of the CDA to publishers, while leaving exposed to defamation claims "distributors" of defamatory statements who have notice of the defamatory nature of the statements they distribute.  The Supreme Court held that such "distributors," commonly know as "secondary publishers," are entitled to the same broad immunity afforded publishers under the CDA.  As explained by the Fourth Circuit in Zeran v. AOL, cited with approval by the California Supreme Court, the CDA "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third party user of the service" except claims such as those arising under the Intellectual Property laws, specifically exempted by the statute.

The Supreme Court also held that the broad immunity afforded under the statute to the providers of interactive computer services extended by operation of the statute's express language to "users" of such services.  "Users" protected by the CDA included those who use an interactive computer service to access the Internet and thereby to post or republish on the Internet a defamatory statement authored by a third party.  As stated by the Court, "by declaring that no 'user' may be treated as a 'publisher' of third party content, Congress has comprehensively immunized republication by individual Internet users."

Rosenthal Republishes On The Internet Alleged Defamatory Statement Authored By Third Party  

According to the Court of Appeals, plaintiffs Stephen Barrett ("Barrett") and Terry Polevoy ("Polevoy") "are physicians primarily engaged in combating the promotion and use of 'alternative' or 'nonstandard' healthcare practices and products."  Each plaintiff "maintains websites that expose 'health frauds and quackery.'"  Defendant Rosenthal "direct[ed] the Humantics Foundation for Women."

Plaintiffs asserted libel claims against Defendant Rosenthal as a result of a series of postings she made to various Usenet and Internet newsgroups.  The most significant of these was a posting Rosenthal made on August 14, 2000. According to the Court of Appeals, in this posting, Rosenthal redistributed an e-mail she received from another defendant, Timothy Bolen, which accused Dr. Polevoy of "stalking women."  The e-mail claimed that "Polevoy stalked Christine McPhee, a … radio personality whose program in support of 'alternative medicine' he disliked."  The e-mail went on to urge readers to file complaints with government officials, media organizations and regulatory agencies "bringing this and other unspecified 'criminal conduct'" to their attention.

Shortly thereafter, plaintiffs informed Rosenthal that Bolen's message was defamatory, and asked that her posting be withdrawn.  Plaintiffs threatened suit if the posting was not withdrawn.  Rosenthal refused, and instead posted additional messages describing plaintiffs' threat and republishing Bolen's e-mail.  These messages and others from Rosenthal also contained derogatory comments about plaintiffs.  This suit followed.

Appellate Court Allows Claim To Proceed

Rosenthal moved under California's Anti-SLAPP statute to dismiss the claims asserted against her, claiming this was a "strategic lawsuit against public participation."  The trial court agreed, and found that plaintiffs lacked the requisite probability of success on their claims to be permitted to go forward.  The trial court dismissed defamation claims arising out of Rosenthal's republication of Bolen's e-mail on the ground that Rosenthal was immunized from liability therefor by Section 230(c)(1) of the CDA, as the content at issue was authored by a third party.    Section 230(c)(1) provides that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The Appellate Court reversed this aspect of the Trial Court's decision, and allowed plaintiff Polevoy to pursue claims arising out of Rosenthal's republication of Bolen's e-mail.  In reaching this result, the Court of Appeals held that Section 230 did not protect Rosenthal from defamation liability arising out of her role as a "distributor" of Bolen's email if she republished it with knowledge or notice of its falsity.

According to the Appellate Court, under the common law, those who publicize another's libel may be treated as primary publishers, conduits or distributors.  "Because they cooperate actively in the publication, primary publishers … are generally held to a strict standard of liability comparable to that of authors.  Conduits, which lack the ability to screen and control defamatory speech … are ordinarily immune from liability.  … Distributors (sometimes known as 'secondary publishers') … are subject to an intermediate standard of responsibility and may only be held liable as publishers if they know or have reason to know of the defamatory nature of matter they disseminate."  While the CDA afforded immunity to publishers, held the Appellate Court, that immunity did not extend to distributors with knowledge or notice of the falsity of the statement.

Communications Decency Act Immunizes Distributors From Defamation Claims Regardless Of Knowledge Or Notice Of Falsity Of Published Statement

The Supreme Court of California reversed the Court of Appeals.  Agreeing with the Trial Court, the Supreme Court held that Section 230(c)(1) of the CDA immunized Rosenthal from the defamation claim at issue, regardless of her knowledge of the truth or falsity of Bolen's e-mail at the time she republished it on the Internet.

In reaching this result, the California Supreme Court relied heavily on the Fourth Circuit's decision in Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997) and its progeny.  In Zeran, the 4th Circuit held:

that the plain language of Section 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 the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred." (Zeran, at p. 330.)

The Fourth Circuit expressly rejected the publisher/distributor dichotomy adopted by the Court of Appeals.  The Zeran court determined that a contrary decision would chill online speech, and inhibit the use of the Internet for robust dialogue.  As explained by the California Supreme Court:

The Zeran court identified three deleterious effects that would flow from reading section 230 to permit liability upon notice. First, service providers who received notification of a defamatory message would be subject to liability only for maintaining the message, not for removing it. This fact, together with the burdens involved in evaluating the defamatory character of a great number of protested messages, would provide a natural incentive to simply remove messages upon notification, chilling the freedom of Internet speech. Second, notice-based liability would deter service providers from actively screening the content of material posted on its service, because discovering potentially defamatory material would only increase the provider's liability. Finally, notice-based liability would give third parties a cost-free means of manufacturing claims, imposing on providers "ceaseless choices of suppressing controversial speech or sustaining prohibitive liability." (Zeran, supra, 129 F.3d at p. 333.)

The California Supreme Court found each of these arguments persuasive.  It found further support for its rejection of the Appellate Court's proffered limitation on the immunity granted by the CDA in the express language of the statute itself.  The CDA immunizes providers and users of interactive computer services from being treated as "publishers," a term which encompasses the very distributors the Court of Appeals sought to exclude from the CDAs coverage, who are common known as "secondary publishers."  The Court also found support for its determination in Congressional pronouncements that post-dated the CDA's enactment, in which a Congressional Committee noted with approval the interpretation given the CDA by the courts, including Zeran.  Finally, the Court found support for its determination in the legislative history of the CDA, which evidence Congress' intent to promote self-regulation as the preferred method for governing conduct on the Internet.  Said the Court:

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.

Individuals Who Use The Internet To Republish Third Party Statements Are Users Also Protected By The Communications Decency Act

The Court held that the immunity granted by the CDA extends to any "user" who uses a connection to the Internet to republish a defamatory statement authored by another.  This conclusion is mandated by a reading of the plain language of Section 230, which bars treating any "provider or user of an interactive computer service" as a publisher.  Even users who actively select a statement authored by another for republication are entitled to such immunity.  Said the Court:

"User" plainly refers to someone who uses something, and the statutory context makes it clear that Congress simply meant someone who uses an interactive computer service.

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A user who actively selects and posts material based on its content fits well within the traditional role of "publisher." Congress has exempted that role from liability.

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We conclude there is no basis for deriving a special meaning for the term "user" in section 230(c)(1), or any operative distinction between "active" and "passive" Internet 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.

Applying this interpretation to the case at bar, Rosenthal was immunized by the CDA from defamation claims arising out of her republication of Bolen's e-mail because she used an Internet connection to publish the e-mail, authored by a third party, on the Internet.  As such, she qualified as a user of an interactive computer service entitled to the protection of the CDA.

The Court noted that its recognition of "broad immunity for defamatory republication on the Internet has some troubling consequences.  Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement."

Conspirators Not Protected?

In a concurrence, Justice Moreno noted that in his view, publishers who conspire with original content providers to defame would not be immunized by the CDA.  In such instances, the content at issue would not be from another content provider within the meaning of the statute, and hence, Section 230(c)(1) would grant no immunity therefore.