''Barrett v. Rosenthal'', 40 Cal.4th 33 (2006),
[, 146 P.3d 510, 51 Cal.Rptr.3d 55 (Cal. Sup. Ct., November 20, 2006). Supreme Court of the State of California, Alameda County, ''Barrett v. Rosenthal: Court Opinion'', Ct.App. 1/2 A096451.] was a
California Supreme Court
The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacra ...
case concerning
online
In computer technology and telecommunications, online indicates a state of connectivity and offline indicates a disconnected state. In modern terminology, this usually refers to an Internet connection, but (especially when expressed "on line" or ...
defamation. The case resolved a defamation claim brought by
Stephen Barrett
Stephen Joel Barrett (; born 1933) is an American retired psychiatrist, author, co-founder of the National Council Against Health Fraud (NCAHF), and the webmaster of Quackwatch. He runs a number of websites dealing with quackery and health frau ...
, Terry Polevoy, and attorney Christopher Grell against Ilena Rosenthal and several others. Barrett and others alleged that the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
s had republished
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
ous 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 is a section of Title 47 of the United States Code that was enacted as part of the United States Communications Decency Act and generally provides immunity for website platforms with respect to third-party content. At its core, Sect ...
of the
Communications Decency Act
The Communications Decency Act of 1996 (CDA) was the United States Congress's first notable attempt to regulate pornographic material on the Internet. In the 1997 landmark case ''Reno v. ACLU'', the United States Supreme Court unanimously struck ...
.
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.'', 129 F.3d 327 (4th Cir. 1997), The opinion of the Fourth Circuit '' cert. denied'', ,[] Bound Volume number 524 of the U.S. Supreme Court is a case in which the United States Court of Appeals for the Fourth Cir ...
'' by holding that Section 230 immunity was ''not'' absolute for
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
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 medicine
Alternative medicine is any practice that aims to achieve the healing effects of medicine despite lacking biological plausibility, testability, repeatability, or evidence from clinical trials. Complementary medicine (CM), complementary and alt ...
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, often synonymous with health fraud, is the promotion of fraudulent or ignorant medical practices. A quack is a "fraudulent or ignorant pretender to medical skill" or "a person who pretends, professionally or publicly, to have skill, ...
.
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
A Usenet newsgroup is a repository usually within the Usenet system, for messages posted from users in different locations using the Internet. They are discussion groups and are not devoted to publishing news. Newsgroups are technically distinct ...
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 Barrett
Stephen Joel Barrett (; born 1933) is an American retired psychiatrist, author, co-founder of the National Council Against Health Fraud (NCAHF), and the webmaster of Quackwatch. He runs a number of websites dealing with quackery and health frau ...
, Terry Polevoy, and attorney Christopher Grell filed suit against Clark, Bolen, Rosenthal, and 100
John Doe
John Doe (male) and Jane Doe (female) are multiple-use placeholder names that are used when the true name of a person is unknown or is being intentionally concealed. In the context of law enforcement in the United States, such names are often ...
defendants in November 2000 before
Alameda County
Alameda County ( ) is a List of counties in California, county located in the U.S. state of California. As of the 2020 United States Census, 2020 census, the population was 1,682,353, making it the 7th-most populous county in the state and List ...
Superior Court
In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
Judge James A. Richman. The case was originally captioned ''Barrett v. Clark''. The defendants were accused of
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
and
conspiracy
A conspiracy, also known as a plot, is a secret plan or agreement between persons (called conspirers or conspirators) for an unlawful or harmful purpose, such as murder or treason, especially with political motivation, while keeping their agree ...
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.
[California Superior Court, Alameda County, ''Barrett v. Clark: Order Granting Defendant's Special Motion to Strike'', 2001 WL 881259, 2001 Extra LEXIS 46]
available online
In an unusually long 27-page written opinion, Judge Richman dismissed the case (against Rosenthal only) under the California
Special motion to strike
The special motion to strike is a motion authorized by the California Code of Civil Procedure intended to stop strategic lawsuits against public participation (SLAPPs). They were created in 1992 with the purpose of encouraging participation in mat ...
(an anti-
SLAPP
Strategic lawsuits against public participation (also known as SLAPP suits or intimidation lawsuits), or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with t ...
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 is a chiefly United States term for compensation for legal services performed by an attorney ( lawyer or law firm) for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Recent studies suggest that when ...
s.
The appellate court upheld the dismissal against Grell and Barrett. Still, it 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 some jurisdictions, a petition for review is a formal request for an appellate tribunal to review the decision of a lower court or administrative body. If a jurisdiction utilizes petitions for review, then parties seeking appellate review of th ...
in April 2004.
California Supreme Court decision
The California Supreme Court overturned the lower court in November 2006, in a
landmark decision
Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly u ...
that is the first to interpret Section 230 defamation
immunity
Immunity may refer to:
Medicine
* Immunity (medical), resistance of an organism to infection or disease
* ''Immunity'' (journal), a scientific journal published by Cell Press
Biology
* Immune system
Engineering
* Radiofrequence immunity desc ...
as providing immunity to an individual internet "user" who is not a provider.
The
American Civil Liberties Union
The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "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". T ...
, the
Electronic Frontier Foundation
The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed on 10 July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet ci ...
, and a number of internet corporations — including
Google
Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronics. ...
,
Yahoo!
Yahoo! (, styled yahoo''!'' in its logo) is an American web services provider. It is headquartered in Sunnyvale, California and operated by the namesake company Yahoo Inc., which is 90% owned by investment funds managed by Apollo Global Man ...
, and
AOL
AOL (stylized as Aol., formerly a company known as AOL Inc. and originally known as America Online) is an American web portal and online service provider based in New York City. It is a brand marketed by the current incarnation of Yahoo (2017â ...
— 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.
''Zeran v. America Online, Inc.'', 129 F.3d 327 (4th Cir. 1997), The opinion of the Fourth Circuit '' cert. denied'', ,[] Bound Volume number 524 of the U.S. Supreme Court is a case in which the United States Court of Appeals for the Fourth Cir ...
'' (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 to defame an original content provider. However, in this case, there was provided no proof of a conspiracy to defame.
Because Barrett and Polevoy were
public figure
A public figure is a person who has achieved notoriety, prominence or fame within a society, whether through achievement, luck, action, or in some cases through no purposeful action of their own,
In the context of defamation actions (libel and s ...
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.
References
External links
High court justices sound cool toward Internet libel case– Bob Egelko,
San Francisco Chronicle
The ''San Francisco Chronicle'' is a newspaper serving primarily the San Francisco Bay Area of Northern California. It was founded in 1865 as ''The Daily Dramatic Chronicle'' by teenage brothers Charles de Young and M. H. de Young, Michael H. de ...
Electronic Frontier Foundation– Legal documents, press, and other resources
Citizen Media Law Project– Description, court information & documents, and other resources
{{DEFAULTSORT:Barrett V. Rosenthal
Supreme Court of California case law
United States Internet case law
United States defamation case law
Section 230 of the Communications Decency Act
2006 in United States case law