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Barrett v. Rosenthal is a 2006 California Supreme Court case concerning Section 230 of the Communications Decency Act. It is an appeal of Barrett v. Clark, a defamation claim brought by Stephen Barrett, Terry Polevoy, and attorney Christopher Grell against women's health advocate Ilena Rosenthal and several others. They were accused of libel and conspiracy to libel, for publishing or republishing allegedly defamatory statements on the internet. All but one of the statements republished by Rosenthal were determined by the lower courts to be non-defamatory opinion. The sole issue in Barrett v. Rosenthal was whether or not Rosenthal was liable for rebroadcasting one statement which accused Polevoy of stalking. In a unanimous decision, the court held that defendant Ilena Rosenthal, a "user of interactive computer services", was immune from liability under Section 230 of the Communications Decency Act.

Lower court rulings

At issue in Barrett v. Clark was an e-mail sent by Tim Bolen, a publicist for alternative medicine practitioners, that attacked Barrett and Polevoy, medical doctors who publicly criticize what they consider quackery. The defendants had published or republished the e-mail on the internet.

The trial court dismissed the case (against Rosenthal only) under the California anti-SLAPP statute, which is intended to stop lawsuits that are "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances," though it has later allowed the case to continue against her co-defendants. The court further ordered that all three plaintiffs pay Rosenthal's attorney's fees.

The appellate court upheld the dismissal against Grell and Barrett, but vacated the decision as against Polevoy. The court held that Section 230 did not protect Rosenthal for one statement she had reposted on two newsgroups, regarding Polevoy's alleged "stalking" of a Canadian talk show host. The court ruled that Rosenthal, as a "distributor", could be held liable under Section 230 for content republished after receiving notice of a potentially defamatory statement, just as vendors of traditional media can be.

Rosenthal petitioned the California Supreme Court to hear the case, and the court granted her petition for review in April, 2004.

California Supreme Court decision

The California Supreme Court overturned the lower court in November, 2006, in a landmark decision that is the first to interpret Section 230 defamation immunity as providing immunity to an individual internet "user" who is not a provider. The American Civil Liberties Union, the Electronic Frontier Foundation, and a number of internet corporations — including Google, Yahoo!, and AOL — filed briefs on behalf of the defendant, arguing that only the originator of a defamatory statement published on the internet could be held liable.

In the majority opinion, Justice Corrigan observed that the plain language of Section 230 shows that "Congress did not intend for an internet user to be treated differently than an internet provider." Both had immunity from liability for the republication of defamatory content on the internet.

The court agreed that "subjecting Internet service providers and users to defamation liability would tend to chill online speech." (citing Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 331-333), which ruled that Internet users – unlike publishers – are not liable for posting online content. Moreover, the court agreed with Rosenthal in the interpretation of congressional intent:

The congressional intent of fostering free speech on the internet supported the extension of Section 230 immunity to active individual users. It is they who provide much of the 'diversity of political discourse,' the pursuit of 'opportunities for cultural development,' and the exploration of 'myriad avenues for intellectual activity' that the statute was meant to protect.

However, the court also acknowledged that blanket immunity for the redistribution of defamatory statements on the Internet has "disturbing implications." Although Plaintiffs are free under Section 230 to sue the originator of a defamatory Internet publication, "any further expansion of liability must await Congressional action."

In a concurring opinion, Justice Carlos Moreno also suggested that immunity would not extend to an online publisher or distributor who conspires with an original content provider to defame. However, in this case, there was provided no proof of a conspiracy to defame.

Because Barrett and Polevoy were public figures, to pursue their defamation claims they would have had to shown by clear and convincing evidence that Rosenthal republished Bolen's statements with malice. While the court affirmed the lower court's dismissal of Barrett's claims (finding the statements in question to be non-actionable statements of opinion), the court also noted that the statements concerning Polevoy's alleged stalking may still be actionable if the plaintiff can show that Rosenthal knowingly republished a falsehood or a statement in reckless disregard of its truth. The court also affirmed the lower court's decision to award Rosenthal attorney's fees for prevailing on her anti-SLAPP motion to dismiss; however, the court directed that those fees be reduced to reflect its ruling to permit Polevoy to proceed with his libel claim.

References

1. 40 Cal.4th 33, 146 P.3d 510, 51 Cal.Rptr.3d 55 (Cal. Sup. Ct., Nov. 20, 2006).
2. ^ Supreme Court of the State of California, Alameda County, Barrett v. Rosenthal: Court Opinion, Ct.App. 1/2 A096451. available online
3. ^ McKee, Mike (September 6, 2006). "Calif. High Court Cold to Liability in Online Speech". The Recorder. Retrieved 2009-03-09.
4. ^ Samson, Martin. "Stephen J. Barrett, et al. v. Ilena Rosenthal". Internet Library of Law and Court Decisions. Retrieved 2009-03-09.
5. ^ California Superior Court, Alameda County, Barrett v. Clark: Order Granting Defendant's Special Motion to Strike, 2001 WL 881259, 2001 Extra LEXIS 46. available online
6. Supreme Court of the State of California, Barrett v. Clark: Petition for Review available online
7. Sinrod, Eric J. (December 20, 2006). "How Web providers dodged a big legal bullet". CNET News. Retrieved 2009-03-09.
8. ^ Seyfer, Jessie (November 22, 2006). "Calif. Supreme Court Shields Web Republishers". The Recorder. Retrieved 2009-03-09.
9. Kravets, David (September 5, 2006). "California justices frown on Internet libel lawsuits". Associated Press. Retrieved 2009-03-10.
10. Brief ofAmici Curiae
11. Woodford, Chad (2006). "The California Supreme Court Considers Web Site Immunity" (PDF). The Daily Journal.
12. Perle, E. Gabriel (2007). "Defamation and related issues". Perle & Williams on Publishing Law. Vol. 2007 Supplement (3rd ed.). Aspen Publishers Online. p. 12. ISBN 0735504482, 9780735504486. {{cite book}}: Check |isbn= value: invalid character (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)
13. Mintz, Howard (November 21, 2006). "Justices hand victory to free speech online". San Jose Mercury News. Retrieved 2009-03-09.
14. Savell, Lawrence (December 22, 2006). "Is Your Blog Exposing You to Legal Liability?". Law.com. Retrieved 2009-03-09.
15. Anderson, Nate (November 21, 2006). "Internet users cannot be sued for reposting defamatory statements". Ars Technica. Retrieved 2009-03-10.

External links

• High court justices sound cool toward Internet libel case - Bob Egelko, San Francisco Chronicle
• Electronic Frontier Foundation - Legal documents, press, and other resources
• Citizen Media Law Project - Description, court information & documents, and other resources

• California state case law
• United States internet case law
• United States defamation case law