[LINK] Internet Defamation Exposure Trimmed?

[Roger Clarke]

[Maybe someone can explain the ramifications of this judgement in 
simple terms.  The article is in the SMH today, but the following is 
the original report in the LA Times, which is a  quality newspaper. 
It doesn't help that the complete cast in the case appears to be 
whacky.  Oops, that might be defamatory;  or maybe not ...]


STEPHEN J. BARRETT et al. v. ILENA ROSENTHAL
Supreme Court of California, Alameda County , Super. Ct. No. 833021-5 
http://www.courtinfo.ca.gov/opinions/documents/S122953.PDF


Ruling limits Internet liability
Los Angeles Times
By Maura Dolan, Times Staff Writer
November 21, 2006
http://www.latimes.com/news/local/la-me-internet21nov21,0,6189196.story

Granting immunity to all but the initial sources of defamatory 
statements protects freedom of expression, state high court says.

SAN FRANCISCO - Internet users and providers cannot be held liable 
for posting defamatory material written by someone else, the 
California Supreme Court ruled unanimously Monday.

"The prospect of blanket immunity for those who intentionally 
redistribute defamatory statements on the Internet has disturbing 
implications," Justice Carol Corrigan wrote for the court. But, she 
added, immunity "serves to protect online freedom of expression and 
to encourage self-regulation."

Monday's decision was consistent with holdings by many federal 
appeals courts and one other state high court. "The courts are now 
uniform," said Ann Brick, who represented the American Civil 
Liberties Union of Northern California in the case.

But attorneys on both sides of the case said the California Supreme 
Court went further than other courts by giving immunity to all 
Internet users except the original author.

"What you couldn't put in your print newspaper, you can put in your 
Internet newspaper," said Christopher E. Grell, who represented two 
doctors who said they were defamed. "The notion of fact-checking and 
verifying things doesn't apply to the Internet."

Mark Goldowitz, the lawyer for the defendant, cited a line in the 
ruling that the decision brought "the law of libel from the Gutenberg 
era to the cyberspace era."

Unlike hard-copy publications, the Internet allows users to 
"immediately respond and correct any harm," said Goldowitz.

"Not everyone has a printing press, but everyone can start a blog or 
post on a news group."

Although the court did not specifically address media websites, 
lawyers on both sides of the case said the ruling would protect 
newspapers and other media that report defamatory remarks by third 
parties on their websites but not on their pages or on air.

The decision overturned a Court of Appeal ruling and threw out a 
lawsuit claiming that Ilena Rosenthal, a San Diego activist for 
breast implant victims, defamed Dr. Stephen J. Barrett and Dr. Terry 
Polevoy on the websites of two news groups.

Barrett and Polevoy operated websites aimed at exposing health fraud 
in various kinds of alternative medicine. They said Rosenthal, a 
supporter of alternative medicine, made the postings even after she 
was told they were libelous.

Rosenthal wrote in one posting that Barrett, a retired psychiatrist 
in Philadelphia, was "arrogant, bizarre, closed minded; emotionally 
disturbed, professionally incompetent, intellectually dishonest Š a 
quack, a thug, a bully, a Nazi."

She similarly described Polevoy, who works in Canada, and accused him 
of making antiSemitic remarks.

An Alameda County Superior Court judge threw out the doctors' lawsuit 
against Rosenthal, ruling that her postings involved the public 
interest and for the most part contained no assertions that could be 
proven false.

But the court determined that one statement in an article Rosenthal 
received from Tim Bolen, subtitled "Opinion by Tim Bolen," was 
problematic. The article accused Polevoy of stalking a Canadian radio 
producer.

The trial court decided nonetheless that Rosenthal could not be held 
liable because she had not written the original posting.

A libel case against Bolen for first making the stalking allegation 
is pending. Bolen describes himself as a crisis management consultant 
and health advocate.

In ruling for Rosenthal, the California Supreme Court interpreted a 
provision of the Communications Decency Act of 1996. Although many 
courts have ruled on the provision, the Rosenthal case was the first 
in which an Internet user with no responsibility for the site 
carrying the posting claimed federal immunity.

The court explained that Internet defamation law differs from that of 
other media.

"Book, newspaper or magazine publishers are liable for defamation on 
the same basis as authors," Corrigan wrote. "Book sellers, news 
vendors or other 'distributors' Š may only be held liable if they 
knew or had reason to know of a publication's defamatory content."

-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
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Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW