Notes & Comment
Vol. 2004, No. 2
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Distributing Internet Content in California: Defamation, Knowledge, and Liability
You operate and manage one or more websites, Internet newsgroups or chat rooms and take comfort that the First Amendment protects freewheeling discussion and commentary by others using your forums. Perhaps you’ve adopted a "hands off" policy because, after all, this is California, it’s the Internet and free speech is a great thing.
A new California Court of Appeal decision says not so fast. Barrett v. Rosenthal (First Appellate District, January 21, 2004, accessible at www.courtinfo.ca.gov (go to Opinions page, scroll recent opinions by case name and date).
Not Making Nice on the Internet
Barrett v. Rosenthal involved passionate advocates of vastly different views about the practice of medicine. The plaintiffs were doctors committed to combating the promotion of "alternative" or "nonstandard" healthcare practices and products. The defendant, a proponent of "alternative medicine," operated at least two Internet Usenet newsgroups (electronic bulletin boards), and was an "active distributor" of advocacy information via the Internet.
Among other things, the defendant posted an email message from a third party that accused one of the plaintiff-doctors of certain criminal behavior. The plaintiffs notified the defendant that the criminal allegation was false and defamatory, demanded its withdrawal from the two Internet Usenet sites operated by the defendant and threatened litigation. The defendant refused to remove the email and instead posted dozens of additional messages about the threatened litigation that attached a copy of the offending email.
Naturally, a lawsuit was born.
In rulings before discovery and a trial ever took place, the trial court sided with the defendant, essentially ruling that discussion on her websites was protected by the First Amendment, that the plaintiffs had failed to allege facts necessary to overcome such constitutional protections (citing burdens they had not met under California's anti-SLAPP (Strategic Lawsuit Against Public Policy) statute), and that the federal Communications Decency Act (CDA) of 1996 (47 USC §230) granted the defendant absolute immunity as a distributor of content over the Internet.
The plaintiffs appealed, and the California Court of Appeal (CCA), while rejecting most of their contentions, agreed that the defendant, as a knowing distributor of allegedly false and defamatory content over two Usenet groups that she controlled, was not entitled to absolute immunity in California under Section 230 of the CDA.
The CCA opinion discusses the potential liability, under California common law, of Internet distributors of defamatory content. It analyzes, strongly criticizes and refuses to follow Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, cert den. (1998) 524 U.S. 937, the prevailing federal decision in this area, issued by the U.S. Court of Appeals for the Fourth Circuit (Richmond, VA) (www.ca4.uscourts.gov, Opinions tab, search by case name).
Is a Distributor a Publisher?
The issue in Barrett v. Rosenthal is essentially this: when can the operator of a website be held liable under California law for a third party's defamation published on the site? Defamation is a tort basically governed by common law. Those who publicize another's defamation generally fall into three categories: a primary publisher (one who is able to control content and therefore can be just as responsible for a defamation as the author), a conduit (one who merely conveys information and is without ability to control content, and therefore is least culpable and ordinarily immune from liability), and a distributor (or secondary publisher).
On the liability spectrum, a distributor falls somewhere between a primary publisher and a conduit, and generally is liable for another's defamation only if it knows or has reason to know of the defamation and does nothing to prevent its publication. At common law, a distributor without knowledge of the defamation is generally treated like a conduit. But a distributor that knowingly publishes a defamation is generally treated as a primary publisher for purposes of liability.
The CDA was passed by Congress in 1996 to, among other things, help protect Internet Service Providers (ISP) and other interactive computer services from tort claims such as defamation that arise from the acts of those who use their Internet facilities. The statute confers immunity upon "Good Samaritan" publishers and users of interactive computer services who implement procedures to screen and block offensive material from the Internet.
In other words, an ISP that attempts to screen and block offensive material from its networks and websites is not liable under Section 230 of the CDA merely because a third party using its facilities publishes a defamation there.
In Zeran v. America Online, Inc., the U.S. Court of Appeals for the Fourth Circuit held that distributors should be treated the same as publishers under Section 230 of the CDA -- that distributors also have statutory immunity from suit, even if they know about the offensive material being published on their website, chat room, electronic bulletin board.
The CCA in Barrett v. Rosenthal rejected the Zeran analysis as applied to the tort of defamation in California through knowing republication by a distributor. The CCA concluded that Zeran had improperly extended statutory immunity from tort liability to distributors that was only meant for publishers; that the CDA is designed to reward "Good Samaritan" publishers who do their best to block objectionable content; that Congress did not lump together primary publishers (e.g., an ISP) and distributors with knowledge (e.g., an advocacy website operator who chooses content) for purposes of granting immunity for third party defamations spread over the Internet.
Summary and Conclusion
In a lengthy, thorough and considered opinion, the CCA in Barrett v. Rosenthal rejected the trial court's finding that the defendant Usenet operator, actively involved in the selection of content appearing on her advocacy sites and having notice that some of the content she republished was defamatory, should be immune from common law tort liability in California pursuant to Section 230 of the CDA.
Barrett v. Rosenthal is a gutsy lower state court decision that construes federal law and ignores controlling federal court authority. While it only represents the view of a single, immediate appellate court in California -- the Court acknowledged that no other case rejects Zeran as it does -- the decision nonetheless suggests that website operators, advocates or otherwise, who participate in and/or control the selection of content appearing on their site and have notice that certain such content is defamatory might be advised to exercise control over that content or risk tort liability under California law.
Whether or not this has always been the best practice, whether or not it makes common sense, we now have appellate authority in California that helps show website operators a better way of doing business.
© Matthew Joseph 2004. Law Offices of Matthew Joseph, San Mateo, California, practices in the areas of intellectual property licensing, commercial real estate leasing, and corporate and business transactions. No legal advice is intended by the information provided herein and recipients should independently consult counsel before taking any action related to this subject matter.