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Republisher not liable for defamation on the Web

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The California Supreme Court, reversing an appeals court decision, has just ruled that individuals are essentially immune from liability for transmitting over the Internet content that was originally authored by someone else. The authors themselves may of course be held liable for defamation or other claims.

The California court ruling [http://www.courtinfo.ca.gov/opinions/documents/S122953.PDF] concerned an article that one Ilena Rosenthal had received via email and re-posted on two Web newsgroups, concerning Dr. Stephen Barrett and others. The latter operated Web sites devoted to exposing health frauds. Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Rosenthal posted on the web, among other things, an article 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.

In the Communications Decency Act of 1996, Congress declared: �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.� and �No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.�

These provisions had been interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source. The immunity has been applied regardless of the traditional distinction between �publishers� and �distributors.� Under the common law, �distributors� like newspaper vendors and book sellers are liable only if they had notice of a defamatory statement in their merchandise. The publisher of the newspaper or book where the statement originally appeared, however, may be held liable even without notice.

California's intermediate appellate court had decided that common law �distributor� liability survived the congressional grant of immunity, so that Internet service providers and users are exposed to liability if they republish a statement with notice of its defamatory character. This has now been quashed, in accordance with a 4th Circuit case, Zeran v. America Online, (4th Cir. 1997) 129 F.3d 327.

So if you wish to defame someone, find something awful already written about them and re-post it on the web!

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.