Rosenthal: Inernet free speech case

A quick hit: In what was a widely watched Internet free speech case (see previous discussion) The California Supreme Court, while acknowleding "distrurbing implications," has ruled that third parties cannot be sued for defamation for reposting material on the Internet.

The significance of the "Rosenthal" case under Sec. 230 of the 1996 Communications Decency Act is laid out in the California court's opinion (PDF):

This appears to be the first published case in which section 230 immunity has been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an “interactive computer service” under the broad definition provided in the CDA.

Basically, the court ruled that Ilena Rosenthal, was a "user" intened under the CDA and was not liable for reposting material that the doctors who sued her considered defamatory. Rosenthal is an alternative medicine advocate, while the doctors operate Web sites to uncover what they say is quackery in alternatives to traditional medicine.

A few other key excerpts:

Given that “distributors” are also known as “secondary publishers,” there is little reason to believe Congress felt it necessary to address them separately. There is even less reason to suppose that Congress intended to immunize “publishers” but leave “distributors” open to liability, when the responsibility of publishers for offensivecontent is greater than that of mere distributors. ...

The Court of Appeal’s reference to the DMCA [Digital Millennium Copyright Act] does not support its conclusion that Congress’s use of the term “publisher” was insufficient to abrogate “distributor” liability. To the contrary, the DMCA shows that Congress has crafted a limited immunity in a closely related context, with specific provision for notice liability. (17 U.S.C. § 512(c).) The fact that it did not do so in the CDA, and has not amended section 230 to add a similar provision in the 10 years since it was enacted, or in the eight years since the example of the DMCA has been in existence, strongly supports the conclusion that Congress did not intend to permit notice liability under the CDA.

We note that it is far from clear how the distinction between traditional print publishers and distributors would apply in the Internet environment, with its many and various forms of discourse. ...The distinction proposed by the Court of Appeal, based on rules developed in the post-Gutenberg, precyberspace world, would foster disputes over which category the defendant should occupy. The common law of defamation would provide little guidance. ...

Under the Court of Appeal’s interpretation of section 230, a “distributor” could be sued if it deleted material after receiving notice of offensive content, but did not act quickly or thoroughly enough to suit
the offended party. Primary “publishers” who decide not to remove offensive postings would be immunized, while “distributors” making the same decision would be unprotected. It is unlikely that Congress intended such incongruous results.

Congress implemented its intent not by maintaining the common law distinction between “publishers” and “distributors,” but by broadly shielding all providers from liability for “publishing” information received from third parties. 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. ...

The great variety of Internet publications, and the different levels of content control that may be exercised by service providers and users, do not undermine the conclusion that Congress intended to create a blanket immunity from tort liability for online republication of third party content. Requiring providers, users, and courts to account for the nuances of common law defamation, and all the various ways they might play out in the Internet environment, is a Herculean assignment that we are reluctant to impose. ...

All republications involve a “transformation” in some sense. 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. ...

We share the concerns of those who have expressed reservations about the Zeran court’s broad interpretation of section 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications. Nevertheless, by its terms section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as “distributors,” nor does it expose “active users” to liability.

The entire opinion is well worth reading. Don't expect this to be the last of it, however. Oneof these cases -- perhaps this one, perhaps another -- has to wind up at the Supreme Court one of these days. The potential for damage to reputations is so great on the Internet -- yet defamation law largely remains in an era when the main operating model was of concentrated, big-pocketed publishers -- that it seems unlikly the high court can avoid it.

See: International Herald Tribune story compiled from wire services. And, of course, the blogs are filling with comment.
Here is the Electronic Frontier Foundation's site on the case with links to original legal documents.