California Supreme Court Watch: Websites NOT Liable for Libel in Third-Party Postings
Carol A. Corrigan, left, smiles while being sworn in by Supreme Court of California Chief Justice Ronald M. George, right, as an associate justice to the Supreme Court of California in San Francisco, Wednesday Jan. 4, 2006. Corrigan was selected by Gov. Arnold Schwarzenegger to succeed Janice Rogers Brown, the seven-member court’s most conservative judge, and only black member. Brown resigned June 30 after the U.S. Senate confirmed her to a federal appeals court in the District of Columbia.
CNET News: Calif. court ruling seeks to protect bloggers, Web publishers
In a victory for bloggers, newsgroup participants and other Web publishers, the California Supreme Court ruled Monday that individual Internet users cannot be held liable for republishing defamatory statements written by others.
The unanimous ruling appears to be the first to make clear that a 1996 law called the Communications Decency Act protects not only providers, but also users of online services who redistribute content. Earlier court rulings had established that Section 230 of that statute shields companies such as AOL and eBay from such liability, provided that they make good faith efforts to restrict access to material that could be considered “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
By passing that law, Congress “has comprehensively immunized republication by individual Internet users,” intending “to protect online freedom of expression and to encourage self-regulation,” the justices concluded in their majority opinion (click for PDF) penned by Associate Justice Carol Corrigan.
Another victory for freedom of expression and open access to information in the internet age..
Flap is glad he made the RIGHT choice and voted earlier this month to confirm Justice Corrigan (heh, it was a unanimous opinion).
The justices acknowledged that “recognizing broad immunity for defamatory republications on the Internet has some troubling consequences.” But unless Congress revises the law, anyone who claims to be defamed by an Internet posting may seek damages only from the “original source of the statement,” they wrote.
Indeed and as it should be unless publishers conspire with the originators of libelous content.
Volokh has more here.
A long line of cases had already held that when a user posts material on a site, the operator of the site (or of the computer), can’t be held liable, even when it’s notified of the potentially tortious nature of the activity. Thus, for instance, we wouldn’t be liable for libels posted in our comments. But this case, as well as Batzel and some others, apply this principle even to immunize those who actively repost material, rather than just serve as passive conduits for what others post. This means that if a commenter posts excerpts from others’ work, even the commentator himself would be categorically immune from liability for the contents of those excerpts, at least unless he’s “active[ly] involve[d] in the creation of [the] posting,” or unless he’s conspiring with the original author.
Note that when I say “immune from liability” or “can’t be held liable,” this is shorthand for “immune from liability except under intellectual property law, communications privacy law, or federal criminal law,” see 47 U.S.C. § 230(e)(1).
Update:
Justin Levine has more here.
Wizbang does as well.
But, Michelle Malkin dissents:
But aren’t bloggers the ones arguing that we should be treated like MSM journalists? Isn’t that what the Apple vs. bloggers case was all about? Remember? Seems to me that some bloggers want to enjoy the benefits of MSM status (fighting for the same coverage as traditional journalists under shield laws, as in the Apple case), but avoid the consequences (getting sued if they re-publish defamatory material online).
Strictly speaking, Barrett v. Rosenthal applies only to those who re-publish defamatory statements. It does not apply to the author of the original defamatory post. Anyone who wants to immunize himself from liability, however, can easily bypass that limitation by posting the original defamatory statement anonymously (for example, from a public library or Kinko’s or by using an anonymizer such as Torpark) then re-publishing it under his or her own name. Those savvy enough to game the system in this way will be able to libel their enemies with impunity.
As one commenter at Volokh points out, “This [ruling] is not a victory for free speech, which was already protected; it is a victory for the perpetrators of libel and slander.”
Stay tuned ……
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