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Immunity for Those Who Repost Defamatory Material:

The California Supreme Court just held, in Barrett v. Rosenthal, that Internet users who post (to Web sites or discussion groups) material created by others are immune from liability.

Federal law, 47 U.S.C. § 230, provides 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." The California Supreme Court held that this protects not just service providers whose sites are used to post material without the provider's intervention, but also users who personally select which material (written by others) to post. (The Ninth Circuit held the same three years ago, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).) The court also noted:

At some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source. Because Rosenthal made no changes in the article she republished on the newsgroups, we need not consider when that line is crossed. We note, however, that many courts have reasoned that participation going no further than the traditional editorial functions of a publisher cannot deprive a defendant of section 230 immunity.

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).

subpatre (mail):
Is it just me, or is this begging for gross abuse?

"...if a commenter posts excerpts from others' work..."
Poster A writes that 'Taken out of context, evidence suggests John is a pedophile.' Poster B excerpts 'John is a pedophile', and is immunized.

The second case may be (a difficult to prove) conspiracy, or non-coordinated cooperation: Poster A writes 'John is a pedophile' to a members-only board of which A-Z are members. Poster B repeats 'John is a pedophile' in public, and is immunized.
11.20.2006 8:35pm
JoeCurious (mail):
What about injunctive relief? Could they be barred from future postings and/or have the postings removed?
11.20.2006 11:14pm
Lev:

We note, however, that many courts have reasoned that participation going no further than the traditional editorial functions of a publisher cannot deprive a defendant of section 230 immunity.


It seems to me also that spreading defamatory and libelous material at some point must cross a boundary from "traditional editorial functions of a publisher" to defamation and libel.
11.21.2006 12:35am
Platypus (mail) (www):
Subpatre is absolutely correct that this opens the door for massive abuse, and the scenario he points out has already happened, with me as a target. It's not clear to me what recourse a decision like this leaves me. The actual author can just hide behind a wall of anonymity, and the forum admin or site operator can no longer be compelled to pierce that wall by a threat of being held responsible for the content themselves. It would be common sense if refusal to disclose the author's identity was construed as taking responsibility for libelous content, but that doesn't seem to be the case. There seem to be only two options left:

(1) Bust the operator for contempt if they refuse to cooperate with attempts to discover the author's identity.

(2) Take solace in the fact that this is a California decision, and I live in Massachusetts.

Neither option is very satisfactory. This is not a victory for free speech, which was already protected; it is a victory for the perpetrators of libel and slander.
11.21.2006 9:17am
Jonathan Hawkins (mail) (www):
Lev, Platypus, subpatre: You can still be liable for conspiring with the original poster or liable for being an original poster. You cannot be liable for quoting or linking something which may be defamatory. The hypo you should be concerned about is this:

Comment A on Blog 1: Bob is a child molester.
Poster C on Blog 2: OMG did you see on Blog 1 that Bob is a child molester?
Poster D on Blog 3: Not only is Bob a child molester, but he also blends puppies.

Poster C, Blog 1, and Blog 2 would not be liable for defamation under this regime. Poster D is. Are you arguing that any of C, 1, or 2 should be?

It *is* a victory for free speech. Imagine if you're the proprietor of Blog 1, being sued for a comment made on your blog. Imagine you're Poster C, who saw what he thought was an incredible news story and posted it on his group blog. Imagine you're Poster E, another contributor to Blog 2, and you're now being sued as well. Poster E clearly should not be liable, but under the regime you're arguing for, she would be.

If any of those people (C, E, 2, 1) did what they did with malice, it's still actionable, under <i>New York Times v. Sullivan</i>. If C or E are anonymous, it's a matter of discovery to determine their identities. The holder of their identities shouldn't be threatened with liability for defamation simply for protecting the personal information of their users. However, if the information is legitimately requested as part of discovery, and they fail to comply, then yes, imprisonment for contempt (or fines) are okay. What you're asking for instead is an abuse of power.
11.25.2006 11:12am