Barrett V. Rosenthal - California Supreme Court Decision

California Supreme Court Decision

The California Supreme Court overturned the lower court in November 2006, in a landmark decision that is the first to interpret Section 230 defamation immunity as providing immunity to an individual internet "user" who is not a provider. The American Civil Liberties Union, the Electronic Frontier Foundation, and a number of internet corporations — including Google, Yahoo!, and AOL — 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. (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 with an original content provider to defame. However, in this case, there was provided no proof of a conspiracy to defame.

Because Barrett and Polevoy were public figures, 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.