California Supreme Court Affirms Broad Immunity for Defamatory Republication on the Internet
By Dale Campbell
When can you knowingly republish defamatory statements without risk of liability? When you do so on the Internet.
The California Supreme Court, in Barrett v. Rosenthal (November 2006) 40 Cal.App.4th 33, followed the line of federal cases interpreting the Communications Decency Act of 1996 (CDA) to find broad immunity for both Internet service providers and users of an interactive computer service for republishing defamatory statements.
In the Barrett case, two doctors brought an action alleging libel and libel per se against an alternative health proponent who had posted messages on Internet news groups referring to the doctors as “quacks.” The defendant also redistributed an email message prepared by another author which alleged that one of the plaintiff doctors had stalked women. The trial court granted defendant’s SLAPP motion, finding that the comments concerned an issue of public interest and ruling that the republication of the third party email was immunized by the CDA. The court of appeal vacated the order, finding that the CDA did not protect the defendant from common law liability for defamation as a “distributor” of the article written by the third party. The Supreme Court granted cert. to determine whether the CDA confers immunity on “distributors.”
The CDA provides:
“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.” (47 U.S.C. § 230(c)(1).)
The plaintiff doctors argued that section 230 did not abolish liability for “distributors” of defamatory statements, arguing that the CDA grants immunity only to the service provider who publishes the defamatory statement, but not to the individual who distributes knowingly defamatory statements authored by another.
Under common law, a “distributor,” such as newspaper vendors or booksellers, is liable only if the distributor knew or had reason to know of the defamatory nature of the material. On the other hand, a “publisher,” such as the newspaper where the defamatory statement originally appeared, is liable even without notice. The plaintiff doctors acknowledged that section 230 expressly provides for immunity for the “publisher,” but did not create absolute immunity for the “distributor” of the defamatory statement. A central component of plaintiffs’ argument, which was adopted by the court of appeal, was that there should be a difference between Internet service providers and individuals who use the Internet.
The California Supreme Court followed the holding of Zeran v. AOL (4th Cir. 1997) 129 F.3d 327, in finding that Congress did not intend to exempt “distributors” from the broad immunity granted by the CDA. The Supreme Court noted that section 230(c) specially extends the immunity to both a “provider” and to a “user” of the interactive computer service, making no distinction between the two. The court noted that the common law distinction between a publisher versus a distributor has very little meaning in the context of the Internet. Publication is a necessary element of all defamation claims and includes every repetition and distribution of a defamatory statement. In fact, “distributors” are frequently referred to as “republishers.” However, in light of plaintiffs’ argument, the Supreme Court requested additional briefing on the statutory term “user” and whether there is a different immunity analysis if a user engages in “active” versus “passive” conduct.
The appellate court, in finding for “distributor” liability, did not draw any distinction between an Internet service provider and an individual user in finding that a distributor who has notice of the defamatory statements is not immune from liability. The Supreme Court recognized that “users,” like the defendant in this case, were situated differently than a service provider in that individual users were not faced with the massive volume of posting that could subject them to liability for distributing defamatory statements. Nevertheless, the Court found that the term “user” is not defined in section 230, nor did the legislative record reflect why Congress included “users” as well as service providers under the broad umbrella of immunity granted by the CDA. Absent Congressional history drawing a distinction between a “provider” and “user,” the Supreme Court found that both are entitled to the broad immunity.
The plaintiff doctors attempted to argue that someone who republishes defamatory statements is no longer involved in passive Internet use but is actively posting or republishing the information and, as such, is an “information content provider” unprotected by the statutory immunity. An “information content provider” is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service . . ..” (Section 230(f)(3).)
The Supreme Court rejected the plaintiffs’ argument, noting that the argument failed to recognize that the immunity granted by section 230(c)(1) expressly prohibits treating any “user” as the publisher or speaker of the defamatory comment. Congress obviously had a broad meaning by the use of the term “user.” Moreover, the Court rejected the argument, attempting to distinguish between “passive” and “active” users. Attempting to draw such a fine distinction would have a chilling effect on online speech – the whole intent behind the Congressional grant of immunity. If distributors could be liable if they had notice of the defamatory statement, there would be great pressure simply to remove the allegedly defamatory statement. The distributor only faces liability by failing to remove the allegedly defamatory statement, but no liability if it improperly removes non-defamatory content. Secondly, the standard of “known or should have known” defamatory nature of the content would defeat the legislative goal of encouraging the self-policing efforts by Internet service providers to remove harmful or obscene content. The Supreme Court did note that, at some point, active involvement in picking and choosing to republish only certain provisions out of an allegedly defamatory publication could expose a defendant to liability as an original source of the material. However, because defendant Rosenthal republished the defamatory work in whole, the Supreme Court did not determine when that might occur. It should be noted, however, that federal cases have reasoned that making modifications to the prior work which do not go beyond the traditional editing function would not defeat a defendant’s immunity under the CDA.
The Supreme Court echoed policy concerns raised by the plaintiffs and some commentators that granting broad immunity to users of the Internet failed to properly consider the public interest in providing redress to victims of Internet defamation. Allowing individuals to knowingly republish defamatory statements on the Internet has broad societal implications, but is a legislative concern. The Supreme Court noted that the Congressional record, as well as the express language of section 230, expressly extends its broad immunity to Internet service providers as well as users and makes no distinction between active and passive use. A victim of defamatory statements published on the Internet only has recourse against the original author of the defamatory statement. Any remedies beyond the original author must await Congressional action.