DEFAMATION ON THE INTERNET

IVAN HOFFMAN, B.A., J.D.


NOTE: THIS ARTICLE HAS BEEN REVISED FROM THE FORMER VERSION TO REFLECT THE CALIFORNIA SUPREME COURT'S DECISION IN THE BARRETT CASE DISCUSSED BELOW.

        In my article called “Defamation,” I discussed some of the issues related to defamation and said briefly that the legal issues related to defamation also apply online, subject to the provisions of 47 USC section 230, which is sometimes called the Communications Decency Act.  The reader should read that article.  The within article expands on that brief discussion and discusses 2 California cases that have covered issues related to defamation on the Internet.

Barrett vs. Rosenthal

        The California Supreme Court, overruling a prior decision from the California Court of Appeals, handed down a decision in Barrett et. al. vs. Rosenthal and held:

We conclude that section 230 prohibits “distributor” liability for Internet publications. We further hold that section 230(c)(1) immunizes individual “users” of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal’s judgment.

We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original
source of the statement.

The Facts

        In the words of the Court,

Plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated Web sites devoted to exposing health frauds.  Defendant Ilena Rosenthal directed the
Humantics Foundation for Women and operated an Internet discussion group. Plaintiffs alleged that Rosenthal and others committed libel by maliciously
distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs’ character and competence and disparaging their efforts to combat. fraud.2 They alleged that Rosenthal republished various messages even after Dr. Barrett warned her they contained false and defamatory information. [Emphasis added]

The court [the Appellate Court] determined that the only actionable statement appeared in an article Rosenthal received via e-mail from her codefendant Tim Bolen. This article, subtitled “Opinion by Tim Bolen,” accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of this article on the Web sites of two newsgroups devoted to alternative health issues and the politics of medicine, not on the site of her own discussion group. [Emphasis added]

        Litigation followed and defendant Rosenthal defended on the basis that she was protected under the California Anti-SLAPP statute (strategic lawsuit against public participation).  However, although this issue was not directly in front of the Supreme Court, the Court held that an Internet news group was “public forum” within the meaning of the statute.

        The Court instead focused on the 230 claims.

The 47 USC Section 230 Claims

        The Court quoted the language of the above statute which states, in part:

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. [Emphasis supplied]
        And then stated:
Rosenthal, however, is not a service provider, at least with respect to the newsgroups where she posted the Bolen article. This appears to be the first published case in which section 230 immunity has been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an “interactive computer service” under the broad definition provided in the CDA. (§ 230(f)(2); see fn. 7, ante.) Accordingly, we asked the parties to brief the meaning of the term “user” in section 230, and whether any distinction might be drawn between active and passive use under the statute. In part C of our discussion, we conclude that Congress employed the term “user” to refer simply to anyone using an interactive computer service, without distinguishing between active and passive use.
        The Court analyzed the key case in the area in which America Online was held not liable under the provisions of section 230. (Zeran v. America Online, Inc. (E.D.Va. 1997) 958 F.Supp. 1124.)  The Court concluded that under this code section, there was no basis for having different liability for one who might be considered a “distributor” of material which, in the off line world, is liable after receiving notice, from one who is “publisher” who is liable even without notice.  Quoting from Zeran:
Similarly, notice-based liability would deter service providers from regulating the dissemination of offensive material over their own services. Any efforts by a service provider to investigate and screen material posted on its service would only lead to notice of potentially defamatory material more frequently and thereby create a stronger basis for liability. Instead of subjecting themselves to further possible lawsuits, service providers would likely eschew any attempts at self-regulation.

More generally, notice-based liability for interactive computer service providers would provide third parties with a no-cost means to create the basis for future lawsuits. Whenever one was displeased with the speech of another party conducted over an interactive computer service, the offended party could simply
‘notify’ the relevant service provider, claiming the information to be legally defamatory. . . . Because the probable effects of distributor liability on the vigor
of Internet speech and on service provider self-regulation are directly contrary to §230’s statutory purposes, we will not assume that Congress intended to leave
liability upon notice intact.

        The Court then addressed the issue of “user” liability under the statute since Rosenthal was clearly not a service provider (remember: the posting was not on the newsgroup she hosted and she was an active re-poster of the same).
The “distributor” liability theory endorsed by the Court of Appeal recognizes no distinction between Internet service providers and individuals. Individual Internet “users” like Rosenthal, however, are situated differently from institutional service providers with regard to some of the principal policy considerations discussed by the Zeran court and reflected in the Congressional Record.  In particular, individuals do not face the massive volume of third-party postings that providers encounter. Self-regulation is a far less challenging enterprise for them. Furthermore, service providers, no matter how active or passive a role they take in screening the content posted by users of their services, typically bear less responsibility for that content than do the users. Users are more likely than service providers to actively engage in malicious propagation of defamatory or other offensive material. These considerations bring into question the scope of the term “user” in section 230, and whether it matters if a user is engaged in active or passive conduct for purposes of the statutory immunity.
    The Court concluded that Rosenthal was a “user” of an interactive computer service and therefore was to be treated in the same way as that service.

    The Court, citing another case, said:

The Batzel majority responded that no logical distinction can be drawn between a defendant who actively selects information for publication and one who screens submitted material, removing offensive content. “The scope of the immunity cannot turn on whether the publisher approaches the selection process as one of  inclusion or removal, as the difference is one of method or degree, not substance.” (Batzel v. Smith, supra, 333 F.3d at p. 1032.) We agree with this reasoning. Furthermore, we reject the dissent’s view that actively selected and republished information is no longer “information provided by another information content provider” under section 230(c)(1). All republications involve a “transformation” in some sense. A user who actively selects and posts material based on its content fits well within the traditional role of “publisher.” Congress has exempted that role from liability.
        [The reader should read “Are You The Provider of an Interactive Computer Service?”  ]

        The Court held:

We conclude there is no basis for deriving a special meaning for the term “user” in section 230(c)(1), or any operative distinction between “active” and “passive” Internet use. By declaring that no “user” may be treated as a “publisher” of third party content, Congress has comprehensively immunized republication by individual Internet users.
Traditional Cat Ass'n, Inc. V. Gilbreath

        In this case, the Court of Appeals was faced with the issues about when does the statute of limitations run when a defamatory remark has been posted on an Internet web site.

        These were the facts as summarized by the Court:

Plaintiff and respondent Diana Fineran and defendants and appellants Laura Gilbreath, Lee Zimmerman, Randi Briggs and John Herold are all very interested in cat breeding. The record discloses Fineran was the president and the individual defendants {Slip Opn. Page 3} were all officers and directors of defendant and appellant Traditional Cat Association (TCA). In 1998 a dispute developed between Fineran and the individual defendants with respect to criticism of Fineran's leadership of TCA. As the result of the dispute, Fineran established another organization, plaintiff and respondent The Traditional Cat Association, Inc., a Washington corporation (TTCA). TTCA then commenced a series of lawsuits against TCA and the individual defendants, alleging that they had misappropriated TCA funds and were guilty of conversion, copyright infringement, unfair competition, trademark and trade secret infringement. fn. 3

In response to the litigation, in 1998 defendant John Herold created a Web site on the Internet which he named "The Diana Fineran Response Website." The Web site purported to report on the status of the litigation initiated by Fineran. The descriptions of the litigation on the Web site were highly critical of Fineran and TTCA and very favorable to TCA, Herold and the other defendants. {Slip Opn. Page 4}

        This lawsuit for defamation and other causes of action followed.  (This article will only discuss the issues related to the defamation claims.)

        The defendants claimed that the statements were protected under the above anti-SLAPP statute and the Court found that the statements were so protected and thus “the burden then shifts to the plaintiff to establish a ‘probability’ of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor. [citation omitted.]”

        The Court ruled that a determination of whether or not the claims were barred by the statute of limitations is a factor in deciding whether or not the plaintiff has proved such a “probability.”  The Court stated:

In sum then the statements on the Web site were an exercise of free speech which shifted to plaintiffs the burden of establishing the merits of their defamation cause of action, including its timeliness. As we explain more fully below, plaintiffs' defamation cause of action is barred by the statute of limitations. [emphasis added]
        The Court then analyzed the “single publication rule” including the Uniform Single Publication Act applicable in most states including California (Civil Code sections 3425.1-.5)  Section 3425.3 of the said California statute reads:
No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
    The Court stated:
Given the unique and dynamic character of the Internet, plaintiffs argue that their defamation cause of action arose continuously while the Web site was operating. Hence they contend that because Herold conceded that the Web site was operating at the time the motion to strike was made, the one-year statute of limitations for defamation (§ 340) had not expired at the time they filed their complaint. As we indicated at the outset, we do not accept this analysis. The plaintiffs' defamation claim is governed by the single-publication rule. [emphases added]
        The Court quoted from another case that stated:
"Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the 'first general distribution of the publication to the public.' [citations omitted]  Accrual at that point is believed to provide adequate protection to potential plaintiffs, especially in view of the qualification that repetition of the defamatory statement in a new edition of a book or newspaper constitutes a new publication of the defamation that may give rise to a new cause of action, with a new {Slip Opn. Page 12} accrual date.[emphasis added] [citation omitted]  Under this rule, the cause of action accrues and the period of limitations commences, regardless of when the plaintiff secured a copy or became aware of the publication.” [citations omitted]
        When the defamation occurs via the Internet, the Court found that the same single publication rule applies.  The Court quoted from still another case:
"In addition to increasing the exposure of publishers to stale claims, applying the multiple publication rule to a communication distributed via mass media would permit a multiplicity of actions, leading to potential harassment and excessive liability, and draining of judicial resources (see Keeton v. Hustler Mag., Inc., 465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790 [1984]; Restatement [Second] of Torts § 577A, Comment d, at p. 210, supra; Note, Cyber-Defamation and the Single Publication Rule, 81 B.U. L. Rev. 895, 898, 913 [2001]). Further, the single publication rule actually reduces the possibility of hardship to plaintiffs by allowing the collection of all damages in one case commenced in a single jurisdiction (see Restatement, Comment d; Note, 81 B.U. L. Rev. at 898). Thus, we have held that, absent republication, 'neither the time nor the circumstance in which a copy of a book or other publication finds its way to a particular consumer is, in and of itself, to militate against the operation of the unitary, integrated publication concept.' (Rinaldi v. Viking Penguin, 52 N.Y.2d 422, 433, 438 N.Y.S.2d 496, 420 N.E.2d 377 [1981]). {Slip Opn. Page 16}” [emphasis added]
        In sum, the holding of the Court is as follows:
In California the accrual of causes of action growing out of the publication of defamatory or other tortious statements is governed by the single-publication rule. Under the rule one cause of action will arise, and the statute of limitations will commence running, upon the first general publication or broadcast of a tortious statement, notwithstanding how many copies of the publication are distributed or how many people hear or see the broadcast. Any subsequent republication or rebroadcast gives rise to a new single cause of action. [emphasis added]

We find the single-publication rule applies to statements published on Internet Web sites. Because the statements which give rise to plaintiffs' cause of action for defamation were posted on a Web site maintained by one of the defendants more than a year before plaintiffs' complaint was filed, the plaintiffs' defamation cause of action is barred by the applicable statute of limitations, Code of Civil Procedure fn. 2 section 340.

Conclusion

        All users of the Internet should examine the manner in which they interact online.  Consult with an attorney with experience in these matters.  And consult as well with your liability insurance to see if you are covered for these kinds of activities.  Read “Publishers Liability Insurance” and “Online Liability Insurance.”

        This is no place for do-it-yourself-lawyers.

Copyright © 2003, 2004, 2006 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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