Barrett v. Rosenthal
Encyclopedia
Barrett v. Rosenthal is a 2006 California Supreme Court case concerning online
defamation. The case resolved a defamation claim brought by Stephen Barrett
, Terry Polevoy, and attorney Christopher Grell against women's health advocate Ilena Rosenthal and several others. Barrett and others alleged that the defendant
s had republished libelous information about them on the internet. In a unanimous decision, the court held that Rosenthal was a "user of interactive computer services" and therefore immune from liability under Section 230
of the Communications Decency Act
.
The California Supreme Court reversed a judgment by the California Court of Appeals, First District, which would have allowed a trial on one of the defamation claims. The lower court's decision was the first opinion to break from Zeran v. America Online, Inc.
by holding that Section 230 immunity was not absolute for common law
distributors. In reversing the Court of Appeals, the California Supreme Court reaffirmed Zeran and directed that all claims against the defendants be dismissed.
practitioners. While working for Hulda Clark, Bolen distributed a missive online that attacked Stephen Barrett and Terry Polevoy, medical doctors who publicly criticize what they consider quackery
. Among other things, Bolen's letter accused Polevoy of stalking a Canadian radio reporter and preventing her from airing a show about alternative medicine.
One of the people who came across Bolen's letter was Ilena Rosenthal, who runs an Internet-based support group for women who have medical problems which they believe to be caused by breast implants.
Rosenthal reposted Bolen's letter on two alternative medicine newsgroup
s. Barrett contacted her, claiming that the letter was libelous and threatening a lawsuit if she did not remove it. Rosenthal subsequently re-posted Bolen's letter, with a copy of Barrett's threat.
, Terry Polevoy, and attorney Christopher Grell filed suit against Clark, Bolen, Rosenthal, and 100 John Doe
defendants in November 2000 before Alameda County
Superior Court
Judge James A. Richman. The case was originally captioned Barrett v. Clark. Defendants were accused of libel
and conspiracy
to libel, for publishing or republishing allegedly defamatory statements on the internet.
Rosenthal was represented by an attorney from the California Anti-SLAPP Project. Rosenthal moved to be stricken from the suit, citing Section 230 of the Communications Decency Act and California's Anti-SLAPP statute. It was uncontested that Rosenthal had published or republished the e-mail on the internet.
The trial court granted her motion, effectively dropping all of the claims against Rosenthal. In an unusually long 27-page written opinion, Judge Richman dismissed the case (against Rosenthal only) under the California anti-SLAPP
statute, which is intended to stop lawsuits that are "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances." The court further ordered that all three plaintiffs pay Rosenthal's attorney's fee
s.
The appellate court upheld the dismissal against Grell and Barrett, but vacated the decision as against Polevoy. The court held that Section 230 did not protect Rosenthal for one statement she had reposted on two newsgroups, regarding Polevoy's alleged "stalking" of a Canadian talk show host. The court ruled that Rosenthal, as a "distributor", could be held liable under Section 230 for content republished after receiving notice of a potentially defamatory statement, just as vendors of traditional media can be.
Rosenthal petitioned the California Supreme Court to hear the case, and the court granted her petition for review in April, 2004.
that is the first to interpret Section 230 defamation immunity as providing immunity to an individual internet "user" who is not a provider. The American Civil Liberties Union
, the Electronic Frontier Foundation
, and a number of internet corporations — including Google
, Yahoo!
, and AOL
— filed briefs on behalf of the defendant, arguing that only the originator of a defamatory statement published on the internet could be held liable.
In the majority opinion, Justice Corrigan
observed that the plain language of Section 230 shows that "Congress did not intend for an internet user to be treated differently than an internet provider." Both had immunity from liability for the republication of defamatory content on the internet.
The court agreed that "subjecting Internet service providers and users to defamation liability would tend to chill online speech." (citing Zeran v. America Online, Inc.
(4th Cir. 1997) 129 F.3d 327, 331-333), which ruled that Internet users – unlike publishers – are not liable for posting online content. Moreover, the court agreed with Rosenthal in the interpretation of congressional intent:
However, the court also acknowledged that blanket immunity for the redistribution of defamatory statements on the Internet has "disturbing implications." Although Plaintiffs are free under Section 230 to sue the originator of a defamatory Internet publication, "any further expansion of liability must await Congressional action."
In a concurring opinion, Justice Carlos Moreno also suggested that immunity would not extend to an online publisher or distributor who conspires with an original content provider to defame. However, in this case, there was provided no proof of a conspiracy to defame.
Because Barrett and Polevoy were public figure
s, to pursue their defamation claims they would have had to show by clear and convincing evidence that Rosenthal republished Bolen's statements with malice. While the court affirmed the lower court's dismissal of Barrett's claims (finding the statements in question to be non-actionable statements of opinion), the court also noted that the statements concerning Polevoy's alleged stalking may still be actionable
if the plaintiff can show that Rosenthal knowingly republished a falsehood or a statement in reckless disregard of its truth. The court also affirmed the lower court's decision to award Rosenthal attorney's fees for prevailing on her anti-SLAPP motion to dismiss; however, the court directed that those fees be reduced to reflect its ruling to permit Polevoy to proceed with his libel claim.
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
defamation. The case resolved a defamation claim brought by Stephen Barrett
Stephen Barrett
Stephen Joel Barrett is a retired American psychiatrist, author, co-founder of the National Council Against Health Fraud , and the webmaster of Quackwatch. He runs a number of websites dealing with quackery and health fraud. He focuses on consumer protection, medical ethics, and scientific...
, Terry Polevoy, and attorney Christopher Grell against women's health advocate Ilena Rosenthal and several others. Barrett and others alleged that the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s had republished libelous information about them on the internet. In a unanimous decision, the court held that Rosenthal was a "user of interactive computer services" and therefore immune from liability under Section 230
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act of 1996 is a landmark piece of Internet legislation in the United States, codified at...
of the Communications Decency Act
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
.
The California Supreme Court reversed a judgment by the California Court of Appeals, First District, which would have allowed a trial on one of the defamation claims. The lower court's decision was the first opinion to break from Zeran v. America Online, Inc.
Zeran v. America Online, Inc.
Zeran v. America Online, Inc., 129 F.3d 327 , cert. denied, 524 U.S. 937 , is a case in which the Fourth Circuit Court of Appeals determined the immunity of Internet service providers for wrongs committed by their users under Section 230 of the Communications Decency Act...
by holding that Section 230 immunity was not absolute for common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
distributors. In reversing the Court of Appeals, the California Supreme Court reaffirmed Zeran and directed that all claims against the defendants be dismissed.
Factual background
The case concerns an e-mail sent by Tim Bolen, a publicist for alternative medicineAlternative medicine
Alternative medicine is any healing practice, "that does not fall within the realm of conventional medicine." It is based on historical or cultural traditions, rather than on scientific evidence....
practitioners. While working for Hulda Clark, Bolen distributed a missive online that attacked Stephen Barrett and Terry Polevoy, medical doctors who publicly criticize what they consider quackery
Quackery
Quackery is a derogatory term used to describe the promotion of unproven or fraudulent medical practices. Random House Dictionary describes a "quack" as a "fraudulent or ignorant pretender to medical skill" or "a person who pretends, professionally or publicly, to have skill, knowledge, or...
. Among other things, Bolen's letter accused Polevoy of stalking a Canadian radio reporter and preventing her from airing a show about alternative medicine.
One of the people who came across Bolen's letter was Ilena Rosenthal, who runs an Internet-based support group for women who have medical problems which they believe to be caused by breast implants.
Rosenthal reposted Bolen's letter on two alternative medicine newsgroup
Newsgroup
A usenet newsgroup is a repository usually within the Usenet system, for messages posted from many users in different locations. The term may be confusing to some, because it is usually a discussion group. Newsgroups are technically distinct from, but functionally similar to, discussion forums on...
s. Barrett contacted her, claiming that the letter was libelous and threatening a lawsuit if she did not remove it. Rosenthal subsequently re-posted Bolen's letter, with a copy of Barrett's threat.
Lower court proceedings
Stephen BarrettStephen Barrett
Stephen Joel Barrett is a retired American psychiatrist, author, co-founder of the National Council Against Health Fraud , and the webmaster of Quackwatch. He runs a number of websites dealing with quackery and health fraud. He focuses on consumer protection, medical ethics, and scientific...
, Terry Polevoy, and attorney Christopher Grell filed suit against Clark, Bolen, Rosenthal, and 100 John Doe
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
defendants in November 2000 before Alameda County
Alameda County, California
Alameda County is a county in the U.S. state of California. It occupies most of the East Bay region of the San Francisco Bay Area. As of the 2010 census it had a population of 1,510,271, making it the 7th most populous county in the state...
Superior Court
Superior Courts of California
The Superior Courts of California are the superior courts in the U.S. state of California with general jurisdiction to hear and decide any civil or criminal action which is not specially designated to be heard in some other court or before a government agency...
Judge James A. Richman. The case was originally captioned Barrett v. Clark. Defendants were accused of libel
Slander and libel
Defamation—also called calumny, vilification, traducement, slander , and libel —is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image...
and conspiracy
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
to libel, for publishing or republishing allegedly defamatory statements on the internet.
Rosenthal was represented by an attorney from the California Anti-SLAPP Project. Rosenthal moved to be stricken from the suit, citing Section 230 of the Communications Decency Act and California's Anti-SLAPP statute. It was uncontested that Rosenthal had published or republished the e-mail on the internet.
The trial court granted her motion, effectively dropping all of the claims against Rosenthal. In an unusually long 27-page written opinion, Judge Richman dismissed the case (against Rosenthal only) under the California anti-SLAPP
Strategic lawsuit against public participation
A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....
statute, which is intended to stop lawsuits that are "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances." The court further ordered that all three plaintiffs pay Rosenthal's attorney's fee
Attorney's fee
Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Attorney fees are separate from fines, compensatory and punitive damages, and from court costs in a...
s.
The appellate court upheld the dismissal against Grell and Barrett, but vacated the decision as against Polevoy. The court held that Section 230 did not protect Rosenthal for one statement she had reposted on two newsgroups, regarding Polevoy's alleged "stalking" of a Canadian talk show host. The court ruled that Rosenthal, as a "distributor", could be held liable under Section 230 for content republished after receiving notice of a potentially defamatory statement, just as vendors of traditional media can be.
Rosenthal petitioned the California Supreme Court to hear the case, and the court granted her petition for review in April, 2004.
California Supreme Court decision
The California Supreme Court overturned the lower court in November, 2006, in a landmark decisionLandmark decision
Landmark court decisions establish new precedents that establish a significant new legal principle or concept, or otherwise substantially change the interpretation of existing law...
that is the first to interpret Section 230 defamation immunity as providing immunity to an individual internet "user" who is not a provider. The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
, and a number of internet corporations — including Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
, Yahoo!
Yahoo!
Yahoo! Inc. is an American multinational internet corporation headquartered in Sunnyvale, California, United States. The company is perhaps best known for its web portal, search engine , Yahoo! Directory, Yahoo! Mail, Yahoo! News, Yahoo! Groups, Yahoo! Answers, advertising, online mapping ,...
, and AOL
AOL
AOL Inc. is an American global Internet services and media company. AOL is headquartered at 770 Broadway in New York. Founded in 1983 as Control Video Corporation, it has franchised its services to companies in several nations around the world or set up international versions of its services...
— filed briefs on behalf of the defendant, arguing that only the originator of a defamatory statement published on the internet could be held liable.
In the majority opinion, Justice Corrigan
Carol Corrigan
Carol Ann Corrigan is an Associate Justice of the California Supreme Court.- Background :Corrigan, the daughter of a newspaperman, grew up in the San Joaquin Valley city of Stockton, California. She graduated from Saint Mary's High School in Stockton, and attended the then women-only Catholic...
observed that the plain language of Section 230 shows that "Congress did not intend for an internet user to be treated differently than an internet provider." Both had immunity from liability for the republication of defamatory content on the internet.
The court agreed that "subjecting Internet service providers and users to defamation liability would tend to chill online speech." (citing Zeran v. America Online, Inc.
Zeran v. America Online, Inc.
Zeran v. America Online, Inc., 129 F.3d 327 , cert. denied, 524 U.S. 937 , is a case in which the Fourth Circuit Court of Appeals determined the immunity of Internet service providers for wrongs committed by their users under Section 230 of the Communications Decency Act...
(4th Cir. 1997) 129 F.3d 327, 331-333), which ruled that Internet users – unlike publishers – are not liable for posting online content. Moreover, the court agreed with Rosenthal in the interpretation of congressional intent:
The congressional intent of fostering free speech on the internet supported the extension of Section 230 immunity to active individual users. It is they who provide much of the 'diversity of political discourse,' the pursuit of 'opportunities for cultural development,' and the exploration of 'myriad avenues for intellectual activity' that the statute was meant to protect.
However, the court also acknowledged that blanket immunity for the redistribution of defamatory statements on the Internet has "disturbing implications." Although Plaintiffs are free under Section 230 to sue the originator of a defamatory Internet publication, "any further expansion of liability must await Congressional action."
In a concurring opinion, Justice Carlos Moreno also suggested that immunity would not extend to an online publisher or distributor who conspires with an original content provider to defame. However, in this case, there was provided no proof of a conspiracy to defame.
Because Barrett and Polevoy were public figure
Public figure
Public figure is a legal term applied in the context of defamation actions as well as invasion of privacy. A public figure cannot base a lawsuit on incorrect harmful statements unless there is proof that the writer or publisher acted with actual malice...
s, to pursue their defamation claims they would have had to show by clear and convincing evidence that Rosenthal republished Bolen's statements with malice. While the court affirmed the lower court's dismissal of Barrett's claims (finding the statements in question to be non-actionable statements of opinion), the court also noted that the statements concerning Polevoy's alleged stalking may still be actionable
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
if the plaintiff can show that Rosenthal knowingly republished a falsehood or a statement in reckless disregard of its truth. The court also affirmed the lower court's decision to award Rosenthal attorney's fees for prevailing on her anti-SLAPP motion to dismiss; however, the court directed that those fees be reduced to reflect its ruling to permit Polevoy to proceed with his libel claim.
External links
- High court justices sound cool toward Internet libel case - Bob Egelko, San Francisco ChronicleSan Francisco Chroniclethumb|right|upright|The Chronicle Building following the [[1906 San Francisco earthquake|1906 earthquake]] and fireThe San Francisco Chronicle is a newspaper serving primarily the San Francisco Bay Area of the U.S. state of California, but distributed throughout Northern and Central California,...
- Electronic Frontier Foundation - Legal documents, press, and other resources
- Citizen Media Law Project - Description, court information & documents, and other resources