Barrett v. Rosenthal

(Formerly Barrett v. Clark)

UPDATE: On November 20, 2006, the California Supreme Court reversed the dangerous Court of Appeals ruling in the Barrett v. Rosenthall case, upholding the strong protections of Section 230 of the federal Telecommunications Act of 1996. Section 230 protects Internet publishers from being held liable for allegedly harmful comments written by others. Prior attempts to eliminate the protections created by Section 230 had almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors. The Supreme Court reversed:

We conclude that section 230 prohibits 'distributor' liability for Internet publications. We further hold that section 230(c)(1) immunizes individual 'users' of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal's judgment.

We acknowledge that recognizing broad immunity for defamatory republications 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.

EFF and the ACLU of Northern California have filed a friend-of-the-court brief in a case that could undermine a federal statute protecting the free speech of bloggers, Internet service providers, and other individuals who use the Internet to post content written by others. The case, Barrett v. Rosenthal, in question is a libel suit filed against women's health advocate Ilena Rosenthal after she posted a controversial opinion piece on a Usenet news group. The piece was written not by Rosenthal, but by Tim Bolen, a critic of plaintiff Terry Polevoy. The California Supreme Court heard oral argument on September 5, 2006, and a decision is expected within 90 days.

In their brief, EFF and the ACLU argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors.

Lawyers for the plaintiffs argue that Rosenthal is liable because posting the comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. If the court finds in favor of the plaintiffs, the implications for free speech online are far-reaching. Bloggers could be held liable when they quote other people's writing, and website owners could be held liable for what people say in message boards on their sites. The end result is that many people would simply cease to publish or host websites. In its brief, EFF argues that "the specter of civil liability chills the speech" of Internet service providers and users, and will inevitably lead to "protective self-censorship." b

"Every other jurisdiction addressing Section 230 has given effect to Congress' broad protections and Internet speech has flourished as a result," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeals upset this settled law and we are simply asking the California Supreme Court to set things right."

"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," said ACLU Staff Attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."

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