California Supreme Court Upholds Internet Defamation Immunity
February 28, 2007
Brian R. Guth- Los Angeles
In a unanimous decision, the California Supreme Court brought the state back into the mainstream by absolving Internet users and hosts from liability for publishing defamatory material that originates from another source. The justices agreed with other courts that have broadly interpreted the immunity granted by the United States Congress in the Communications Decency Act (CDA) of 1996, noting that a lower California court had been “swimming against the jurisprudential tide” in finding Internet users and hosts liable.
The defendant in Barrett v. Rosenthal posted various e-mails that she received on a newsgroup Web site. The defamation plaintiffs alleged that she republished the messages after being warned that they were false and defamatory. The defendant moved to strike the complaint under California’s anti-SLAPP statute, arguing that her statements were not actionable and that they were protected speech. (The anti-SLAPP statute – which stands for “Strategic Lawsuits Against Public Participation” – provides for early dismissals of libel lawsuits and awards a defendant’s legal fees in certain cases arising out of First Amendment activities.) The defendant also argued that she was immune under the Communications Decency Act.
The trial court granted her motion, finding that most of the statements were not actionable because they did not contain provably false assertions of fact, and that the CDA immunized the defendant’s actions. The court of appeal, however, vacated the order, holding that although the CDA provides that someone who posts a third-party’s statement is not a “publisher” – and therefore ordinarily will be immunized under the Act – the defendant here was instead a “distributor” under common law principles and could still be held liable.
The California Supreme Court reversed the court of appeal, making three important rulings of law. First, the court found that publicly accessible Web sites, such as the newsgroups to which the defendant posted the allegedly defamatory statements, are “public forums” for purposes of California’s anti-SLAPP statute. Second, the court held that the CDA immunizes both Internet publishers and distributors. Third, the court held that the CDA immunizes individual “users” of interactive computer services, regardless of whether they are “active” or “passive” users.
The California Supreme Court, relying heavily on rulings from courts outside of the region, found that under the plain language Congress used in the CDA, the distinction between “publishers” and “distributors,” useful in other areas of the law, was irrelevant. Furthermore, the court noted, immunizing publishers but leaving distributors open to liability made little sense, given that publishers have greater responsibility for offensive content than distributors.
Several policy implications also factored into the court’s decision:
• subjecting Internet service providers and users to defamation liability would tend to chill online speech;
• the time and expense involved in investigating potentially defamatory Internet postings is great; and,
• allowing liability would create a threat of censorship, since complaints, even those that are completely baseless, would force providers to remove potentially defamatory material until their investigation was complete or face the threat of liability.
The court then addressed the issue of whether the defendant qualified for the CDA immunity as a “user,” and whether to treat “active” and “passive” users differently. The court concluded that there was no basis for treating service providers and users differently, that the statute clearly granted immunity to both, and that Congress’s purpose of fostering free speech on the Internet supported the extension of the Act’s immunity to both active and passive users.
The California Supreme Court’s decision brings the state into conformity with the great majority of jurisdictions that have considered the issue. The decision clearly benefits Internet service providers and Internet users, but also eliminates the attractiveness of California for forum-shopping plaintiffs.
For more information, e-mail Brian R. Guth at brian.guth@hklaw.com or call toll free, 1-888-688-8500.