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January 19, 2007

April 2004: Calif. Sup. Court Will Review Immunity Ruling in Online Libel Case

Filed under: Uncategorized — bucketsdata @ 9:16 pm

Calif. Sup. Court Will Review Immunity Ruling in Online Libel Case

1,062 words
20 April 2004
Computer and Online Industry Litigation Reporter
Volume 21; Issue 23
Copyright (c) 2004 Andrews Publications. All rights reserved.

The ruling to be reviewed came in a suit filed by doctors Stephen J. Barrett and Terry Polevoy and attorney Christopher E. Grell, all of whom work to expose fraud and quackery in the alternative-medicine industry.

Barrett operates six Web sites including quackwatch.com, and Polevoy practices medicine in Canada and operates a Web site devoted to exposing dubious medical practices. Grell is an attorney who handles cases involving health fraud and harm caused by use of herbal products.

The suit named seven defendants who advocate the use of alternative medicine. The lengthy complaint accused the defendants of libel and conspiracy for allegedly publishing numerous defamatory statements about the plaintiffs.

Alameda County Superior Court Judge James A. Richman ruled on five allegedly libelous messages defendant Ilena Rosenthal posted to various Usenet newsgroups. Rosenthal alleged the plaintiffs’ lawsuit was a SLAPP suit — “strategic lawsuit against public participation” —designed to chill her First Amendment free-speech rights and should be thrown out under California’s anti-SLAPP law.

Under that law, Rosenthal must show that the lawsuit arose from activities she engaged in to further her “right of petition or free speech under the United States or California constitutions in connection with a public issue.”

Judge Richman held that the anti-SLAPP statute applied because Rosenthal’s newsgroup postings were made in a public forum and concerned the validity of alternative medicine — controversial issue that is clearly of significant public concern.

Next, he said, the plaintiffs were required to demonstrate a probability of success on their claim in order to keep the suit alive. As an initial matter, he said, plaintiff Grell cannot make a case for libel because he is not mentioned in any of Rosenthal’s messages.

That left the claims of Barrett and Polevoy, but Judge Richman said they, too, failed to establish a basic element of their case — that the statements Rosenthal posted to the newsgroups were “demonstrably false statements of fact.” Instead, he found, most of her messages contained expressions of opinion or subjective rhetoric.

The one message of Rosenthal’s that did contain allegedly libelous fact-based material was not written by Rosenthal herself but was simply a re-post of an article written by Tim Bolen, also a named defendant.

That article accused Polevoy of “stalking” Christine McPhee, a Canadian radio personality whose program supported alternative medicine, as part of a “criminal conspiracy” to intimidate McPhee, and it urged readers to report Polevoy’s alleged stalking to Canadian authorities and demand a criminal investigation.

Polevoy contacted Rosenthal and told her the stalking allegations were false. He asked her to remove the posting, but she refused and instead posted it to several other chat rooms and bulletin boards.

Judge Richman said Rosenthal could not be liable for defamation based on this posting under Section 230 of the Communications Decency Act because she was not its author.

Section 230, which preempts state defamation laws, states “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.”

Even if Barrett and Polevoy could establish a probability of success under California’s anti-SLAPP law, Judge Richman said, their suit would still fail because they are public figures who would have to show that Rosenthal acted with “actual malice” when she posted the messages, meaning that she either knew they were false or acted with reckless disregard for whether they were true or false.

The Appellate Court Ruling

The appellate panel said that Section 230 does not bar the imposition of liability in this case with regard to the potentially libelous posting targeting Polevoy because malice and disregard for the truth can be inferred from the circumstances, including Rosenthal’s failure to investigate the truth of the stalking allegation and her reliance on obviously biased sources (see Computer & Internet LR, Vol. 21, Iss. 13).

The appeals court engaged in a lengthy analysis of Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997), the first federal appellate decision to interpret Section 230.

The Zeran court granted blanket immunity to both the authors and distributors of allegedly defamatory material, but the appellate court here held that the Communications Decency Act cannot be deemed to abrogate the common-law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character.

The panel said Congress, in its legislative history, and the language of the statute never meant to grant blanket immunity but rather meant to encourage Internet service providers and users to self-regulate potentially injurious messages. If distributors, like Rosenthal, are granted blanket immunity, they would have no incentive to police their postings.

Distributor liability does not require a service provider or user to review communications in advance of posting them, but only to act reasonably after being informed that the posting is defamatory, the court said.

In this case, Rosenthal admitted her only attempt to investigate the stalking claim was to talk to McPhee, who lost her radio show and is biased toward Polevoy, the court said.

A failure to investigate, anger and hostility toward the plaintiff, and reliance upon sources know to be biased are all circumstantial evidence of malice, the court said, and, therefore, Polevoy may be able to prevail on the stalking-related claim.

The panel reversed the lower court ruling as to Polevoy’s stalking-related claim but affirmed the judgment in all other respects.

In their petition for review, Barrett and Polevoy argued that the appeals court’s decision is “contrary to all precedent” and undermines congressional intent in enacting Section 230.

Review is especially necessary, they argued, because the ruling conflicts with a 9th Circuit decision, Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003). If left unresolved, they contended, the conflict will encourage forum-shopping and create the “untenable” result that California residents sued for reposting allegedly defamatory material will not be protected by Section 230, while out-of-state defendants will be.

Full Case Name: Barrett et al. v. Rosenthal|Short Case Name: Barrett v. Rosenthal|Court: Cal.|Case Action: review granted|Docket Number: No. S122953|Action Date: 4/14/2004

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