Full case report
Barrett v Rosenthal
Court Supreme Court of California
Judge George C.J. and Corrigan, Kennard, Baxter, Werdegar, Chin, Moreno J.J.
Date of Judgment 20 Nov 2006
Libel – Liability of Website Providers – Immunity under US law
The Defendant, Ilena Rosenthal, a women’s health advocate who ran various message boards promoting alternative medicine, was sent an email by Tim Bolen which accused Dr Polevoy of stalking a Canadian radio producer and included various defamatory allegations directed at Polevoy and his colleague, Dr Barrett. These two doctors operated websites devoted to exposing health frauds. Rosenthal posted the email to two newsgroups, upon which Polevoy and Barrett sued her, the author and others for libel. The Claimants alleged that Rosenthal republished the information after being warned that it was false and defamatory. The trial court ruled that Rosenthal’s actions were protected under s.230 Communications Decency Act 1996, which provided broad immunity to Internet publishers from being held liable for allegedly harmful comments written by others. On appeal the California Court of Appeal held that the Defendant was not shielded from liability as she was a distributor of the information.
(i) Whether s.230 Communications Decency Act 1996, conferred immunity on distributors (ii) whether the Defendant, being an individual Internet user as opposed to a service provider, was protected by the immunity and (iii) whether a distinction was to be drawn between active and passive use.
Reversing the Court of Appeal’s decision, the State Supreme Court held that by its terms s.230 exempts all Internet intermediaries from defamation liability for republication. The Court also found that individual users of interactive computer services were afforded statutory protection and that no practical or principled distinction could be drawn between active and passive use.
Liability for website owners and bloggers is another area where the law in the UK (and Europe) is very different from that in the US. This decision essentially recognises that under US Federal Law websites will be free of liability for what is posted by third parties. In the UK, under s.1 Defamation Act 1996, they would risk losing the statutory defence under the section if they continued to publish defamatory material after being put on notice by a complaint – see Godfrey v Demon Internet  QB 201. For ISPs, who merely facilitate the website hosting and have no editorial control, Bunt v Tilley offers them effective immunity from suit.
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