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People who republish defamatory content online cannot be held liable for defamation even if they were warned about it, the California Supreme Court has ruled. Barrett v. Rosenthal, No. 06 C.D.O.S. 10651. The case centered on a defamation claim filed by Pennsylvania psychiatrist Dr. Stephen Barrett and Canadian physician Dr. Terry Polevoy against Ilena Rosenthal. Barrett and Polevoy operated Web sites devoted to exposing health frauds. Rosenthal, director of the Humantics Foundation for Women, operated an Internet discussion group. Barrett and Polevoy alleged that Rosenthal and others had committed libel by maliciously distributing defamatory statements in e-mails and Internet postings, impugning their character and competence. They alleged that Rosenthal republished various messages even after Barrett had sent her an e-mail, warning that they contained false and defamatory information and threatening to sue. Rosenthal moved to strike their complaint under the anti-”SLAPP” statute. (SLAPP is an acronym for strategic lawsuit against public participation.) The trial court granted the motion, ruling that Rosenthal’s statements concerned issues of public interest and were thus within the scope of the anti-SLAPP statute, and were, for the most part, not actionable because they contained no provably false assertions of fact. The only actionable statement, the court said, appeared in an article accusing Polevoy of stalking a Canadian radio producer, which Rosenthal posted on the Web sites of two newsgroups devoted to alternative health issues. She did not post it on the site of her own discussion group. The trial court ruled that this republication was immunized by Section 230 of the federal Communications Decency Act of 1996, which said that, “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.” California’s 1st District Court of Appeal reversed, holding that an Internet discussion group operator who received notice that something was potentially defamatory and posted it anyway was liable as a “distributor,” in the same way a bookseller who knowingly sells a defamatory book would be. Section 230, according to the court, did not protect Rosenthal from liability as a “distributor” under the common law of defamation. Common law “distributor” liability survived the congressional grant of immunity, so that Internet service providers and users are exposed to liability if they republish a statement with notice of its defamatory character. Barrett’s e-mail to Rosenthal threatening to sue constituted sufficient notice that she could be held liable for defamation. The California Supreme Court reversed. Writing on behalf of the court, Justice Carol Corrigan said that the federal statute clearly exempted Internet intermediaries from defamation liability for republication, which, she said “serves to protect online freedom of expression and to encourage self-regulation, as Congress intended.” Corrigan wrote. Congress had intentionally refrained from applying the same “notice” standard for Internet distribution, she said. Moreover, “Plaintiffs are free under section 230 to pursue the originator of a defamatory Internet publication. Any further expansion of liability must await Congressional action.” Further, requiring online content distributors to decide whether to yank content whenever they get notice would create a so-called heckler’s veto, Corrigan wrote. Most content posters would pull content immediately rather than take a chance that they would be liable for any defamation. Internet free speech advocates hailed the California high court ruling, claiming that it reaffirmed the proper interpretation of Section 230.

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