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Font Resize"The Court of Appeal gave insufficient consideration to the burden its rule would impose on Internet speech," Associate Justice Carol Corrigan wrote in overturning the lower court's 2004 decision, noting the earlier ruling meant anyone unhappy with an online posting could squelch such speech by threatening to sue. "The volume and range of Internet communications make the 'heckler's veto' a real threat under the Court of Appeal's holding."
Recognizing such broad immunity "has some troubling consequences," she acknowledged. "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."
The lawsuit laid low by Monday's ruling was filed by Dr. Stephen Barrett, a retired Pennsylvania psychiatrist, and Dr. Terry Polevoy of Ontario, Canada, who have authored books and operate Web sites claiming to expose instances of health fraud and quackery.
They claimed Ilena Rosenthal of San Diego, an anti-breast-implant activist who posts to alternative-medicine online newsgroups, and others had libeled them in Internet postings. Rosenthal argued Section 230 of the federal Communications Decency Act — which immunizes from liabilitythose who post
An Alameda County Superior Court judge in 2001 sided with Rosenthal, finding only one of her statements — something someone else wrote that Rosenthal then reposted online — was arguably defamatory, but the federal law protected her from being sued for it. The state Court of Appeal in 2004 reversed that ruling, finding the federal law shouldn't be interpreted to block the common-law principle that a user can be held liable if he or she knew or had reason to know the statements were false.
The state Supreme Court ruled Monday that while "(t)he prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications," the federal law clearly "exempts Internet intermediaries from defamation liability for republication. ... It does not permit Internet service providers or users to be sued as 'distributors' nor does it expose 'active users' to liability."
"Any further expansion of liability must await Congressional action," she wrote.
The doctors' attorney, Christopher Grell of Oakland, said he was disappointed the court "basically passed the buck off to Congress, but hopefully this decision will get Congress to act."
"It's a victory for free speech, at what cost? The right of someone's privacy, the right of someone's good name?" he asked, adding that for now, "(S)omeone who knows something is libelous — no matter how much evidence you present to them — is free to republish that posting willfully, wantonly and recklessly, and you have no right to go after them."
Rosenthal's attorney, Mark Goldowitz of Berkeley, noted Corrigan wrote that the Court of Appeal had relied upon "rules developed in the post-Gutenberg, precyberspace world." Monday's ruling, he said, "brings the law of defamation into the 21st century."
Ann Brick, an American Civil Liberties Union staff attorney who filed a friend-of-the-court brief on Rosenthal's behalf, said similar cases have involved online editors or authors, but "this is really just an ordinary person who is very active in newsgroups, posting something to a newsgroup that she thought would be of interest."
She praised the decision as "an important victory for free speech — it means the Internet will remain this exceptionally vibrant forum for the exchange of ideas."
Electronic Frontier Foundation senior staff attorney Lee Tien, who also filed a brief on Rosenthal's side, called the ruling "important because it didn't go the wrong way."
"The court really understood ... that speech on the Internet really depends on what individual users say" and so is a grassroots medium unlike formal news media such as newspapers or television, he said. "This is why Congress created a different rule for Internet speech than for other media, and that was what the Court of Appeal failed to grasp or accept."
Contact Josh Richman at jrichman@angnewspapers.com.
