BARRETT v. ROSENTHAL
Barrett Vs Rosenthal.
STEPHEN J. BARRETT et al., Plaintiffs and Appellants, v. ILENA ROSENTHAL, Defendant and Respondent.
(Superior Court of Alameda County, No. 833021-5 James A. Richman, Judge.)
(The Court of Appeal, First Dist., Div. Two, No. A096451, 114 Cal.App.4th 1379.)
(Opinion by Corrigan, J., with George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurring. Concurring opinion by Moreno, J.)
COUNSEL
Law Offices of Christopher E. Grell, Christopher E. Grell, Richard R. Rescho and Ian P. Dillon for Plaintiffs and Appellants.
Mark Goldowitz, Jesper Rasmussen; Piper Rudnick, Roger Myers, Lisa Sitkin and Katherine Keating for Defendant and Respondent.
Lee Tien and Kurt Opsahl for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendant and Respondent.
Ann Brick for American Civil Liberties Union Foundation of Northern California as Amicus Curiae on behalf of Defendant and Respondent.
Cooley Godward, Michael G. Rhodes, Lori R.E. Ploeger, and Laura C. Pirri for eBay Inc. as Amicus Curiae on behalf of Defendant and Respondent.
Wilmer Cutler Pickering Hale and Dorr, Patrick J. Carome, Samir Jain, and C. Colin Rushing for Amazon.com, Inc., America Online, Inc., eBay Inc., Google Inc., Microsoft Corporation, Yahoo! Inc., ABC, Inc., Ask Jeeves, Inc., Cable News Network LP, LLLP, Compuserve Interactive Services, Inc., Earthlink, Inc., ESPN, Inc., Netscape Communications Corporation, SBC Internet Services, Time Warner Cable Inc., The Washington Post Company, Association for Competitive Technology, California Newspaper Publishers Association, Information Technology Association of America, Internet Alliance, Internet Commerce Coalition, National Cable & Telecommunications Association, Netchoice, Netcoalition Newspaper Association of America, Online News Association, Online Publishers Association, TechNet and United States Internet Service Provider Association as Amici Curiae on behalf of Defendant and Respondent.
Deidre K. Mulligan for Law Professors with Expertise in Internet Law as Amicus Curiae on behalf of Defendant and Respondent.
OPINION
CORRIGAN, J.-
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.” (47 U.S.C. § 230(c)(1).) fn. 1 “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.” (§ 230(e)(3).)
These provisions have been widely and consistently 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. {Slip Opn. Page 2}
In this case, the Court of Appeal diverged from the prevailing interpretation of section 230. It 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.
We granted review to decide whether section 230 confers immunity on “distributors.” Because this case involves the liability of an individual rather than a service provider, we asked the parties to address the definition of the statutory term “user.” We also requested briefing on whether the immunity analysis is affected if a user engages in active rather than passive conduct. 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.
I. FACTUAL AND PROCEDURAL BACKGROUND
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 {Slip Opn. Page 3 } fraud. fn. 2 They alleged that Rosenthal republished various messages even after Dr. Barrett warned her they contained false and defamatory information.
Rosenthal moved to strike the complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16; SLAPP is an acronym for strategic lawsuit against public participation.) She claimed her statements were protected speech, and argued that plaintiffs could not establish a probability of prevailing because she was immune under section 230. (See Code Civ. Proc., § 425.16, subd. (b); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) She also contended her statements were not actionable.
The court granted the motion, finding that Rosenthal’s statements concerned an issue of public interest within the scope of the anti-SLAPP statute, and were, for the most part, not actionable because they contained no provably false assertions of fact. Plaintiffs do not challenge that ruling. The 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. According to Rosenthal, these newsgroups were part of “the wild west of the Internet,” with “no administrators {Slip Opn. Page 4} and no one to enforce rules of conduct.” fn. 3 The trial court ruled that this republication was immunized by section 230(c) (1).
The Court of Appeal vacated the order granting the motion to strike insofar as it applied to Dr. Polevoy. It held that section 230 did not protect Rosenthal from liability as a “distributor” under the common law of defamation. We granted Rosenthal’s petition for review. fn. 4
