Barrett v. Rosenthal

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Barrett v. Rosenthal
Seal of the Supreme Court of California.png
Decided November 20, 2006
Full case nameStephen J. Barrett et al., Plaintiffs and Appellants v. Ilena Rosenthal, Defendant and Respondent
Citation(s)40 Cal.4th 33, 146 P.3d 510, 51 Cal.Rptr.3d 55
Court membership
Chief JusticeGeorge
Associate JusticesKennard, Baxter, Werdegar, Chin, Moreno, Corrigan
Case opinions
MajorityCorrigan, joined by George, Kennard, Baxter, Werdegar, Chin, Moreno
ConcurrenceMoreno

Barrett v. Rosenthal, 40 Cal.4th 33 (2006), [1] was a California Supreme Court case concerning online defamation. The case resolved a defamation claim brought by Stephen Barrett, Terry Polevoy, and attorney Christopher Grell against Ilena Rosenthal and several others. Barrett and others alleged that the defendants had republished libelous 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 of the Communications Decency Act.

Internet Global system of connected computer networks

The Internet is the global system of interconnected computer networks that use the Internet protocol suite (TCP/IP) to link devices worldwide. It is a network of networks that consists of private, public, academic, business, and government networks of local to global scope, linked by a broad array of electronic, wireless, and optical networking technologies. The Internet carries a vast range of information resources and services, such as the inter-linked hypertext documents and applications of the World Wide Web (WWW), electronic mail, telephony, and file sharing.

Stephen Barrett American psychiatrist

Stephen Joel Barrett (; born September 6, 1933 is an American retired psychiatrist, author, co-founder of the National Council Against Health Fraud, and the webmaster of Quackwatch. He runs a number of websites dealing with quackery and health fraud. He focuses on consumer protection, medical ethics, and scientific skepticism.

Defendant Accused person

A defendant is a person accused of committing a crime in criminal prosecution or a person against whom some type of civil relief is being sought in a civil case.

Contents

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. [2] The lower court's decision was the first opinion to break from Zeran v. America Online, Inc. by holding that Section 230 immunity was not absolute for common law distributors. In reversing the Court of Appeals, the California Supreme Court reaffirmed Zeran and directed that all claims against the defendants be dismissed.

<i>Zeran v. America Online, Inc.</i>

Zeran v. America Online, Inc., 129 F.3d 327, cert. denied, 524 U.S. 937 (1998), is a case in which the United States Court of Appeals for the Fourth Circuit determined the immunity of Internet service providers for wrongs committed by their users under Section 230 of the Communications Decency Act (CDA). Section 230(c)(1) of the CDA provides that "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."

Common law Law developed by judges

In law, common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

Factual background

The case concerns an e-mail sent by Tim Bolen, a publicist for alternative medicine practitioners. [3] 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. [3] Among other things, Bolen's letter accused Polevoy of stalking a Canadian radio reporter and preventing her from airing a show about alternative medicine. [3]

Alternative medicine describes any practice that aims to achieve the healing effects of medicine, but which lacks biological plausibility and is untested or untestable. In some cases AM treatments are proven ineffective. Complementary medicine (CM), complementary and alternative medicine (CAM), integrated medicine or integrative medicine (IM), and holistic medicine are among many rebrandings of the same phenomenon. Alternative therapies share in common that they reside outside medical science, and rely on pseudoscience. Alternative medicine is distinct from experimental medicine, which employs the scientific method to test plausible therapies by way of responsible and ethical clinical trials, producing evidence of either effect or of no effect. Research into alternative treatments often fails to follow proper research protocol and denies calculalaton of prior probability, providing invalid results. Traditional practices become "alternative" when used outside their original settings without proper scientific explanation and evidence. Frequently used derogatory terms for the alternative are new-age or pseudo, with little distinction from quackery.

Quackery The promotion of fraudulent or ignorant medical practices

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, knowledge, qualification or credentials they do not possess; a charlatan or snake oil salesman". The term quack is a clipped form of the archaic term quacksalver, from Dutch: kwakzalver a "hawker of salve". In the Middle Ages the term quack meant "shouting". The quacksalvers sold their wares on the market shouting in a loud voice.

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 newsgroups. [3] 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. [3]

Lower court proceedings

Stephen Barrett, Terry Polevoy, and attorney Christopher Grell filed suit against Clark, Bolen, Rosenthal, and 100 John Doe defendants in November 2000 before Alameda County Superior Court Judge James A. Richman. The case was originally captioned Barrett v. Clark. The defendants were accused of libel and conspiracy to libel, for publishing or republishing allegedly defamatory statements on the internet. [4]

John Doe placeholder name

"John Doe" and "Jane Doe" are multiple-use 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 used to refer to a corpse whose identity is unknown or unconfirmed. Secondly, such names are also often used to refer to a hypothetical "everyman" in other contexts, in a manner similar to "John Q. Public" or "Joe Public". There are many variants to the above names, including "John Roe", "Richard Roe", "Jane Roe" and "Baby Doe", "Janie Doe" or "Johnny Doe".

Alameda County, California County in California

Alameda County is a county in the state of California in the United States. As of the 2010 census, the population was 1,510,271, making it the 7th-most populous county in the state. The county seat is Oakland. Alameda County is included in the San Francisco Bay Area, occupying much of the East Bay region.

Rosenthal was represented by an attorney from the California Anti-SLAPP Project. [3] 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. [5]

The trial court granted her motion, effectively dropping all of the claims against Rosenthal. [5] In an unusually long 27-page written opinion, Judge Richman dismissed the case (against Rosenthal only) under the California anti-SLAPP 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." [3] [5] The court further ordered that all three plaintiffs pay Rosenthal's attorney's fees. [6]

The appellate court upheld the dismissal against Grell and Barrett, but vacated the decision as against Polevoy. [6] 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. [4] 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. [6]

Rosenthal petitioned the California Supreme Court to hear the case, and the court granted her petition for review in April 2004. [7] [8]

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. [1] [9] 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. [4] [9] [10] [11]

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." [1] Both had immunity from liability for the republication of defamatory content on the internet. [12]

The court agreed that "subjecting Internet service providers and users to defamation liability would tend to chill online speech." [1] [13] (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. [4] 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." [14] Although plaintiffs are free under Section 230 to sue the originator of a defamatory Internet publication, [15] "any further expansion of liability must await Congressional action." [16]

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. [1]

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. [6]

Related Research Articles

Defamation, calumny, vilification, or traducement is the communication of a false statement that harms the reputation of, depending on the law of the country, an individual, business, product, group, government, religion, or nation. In South Korea and some other countries, communicating a true statement can also be considered defamation.

A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech.

<i>Carafano v. Metrosplash.com, Inc.</i>

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, is an American legal case dealing with the protection provided an internet service provider under the Communications Decency Act (CDA) United States Code Title 47 section 230(c)(1). It is also known as the Star Trek actress case as the plaintiff, Chase Masterson – whose legal name is Christianne Carafano – is well known for having appeared on Star Trek: Deep Space Nine. The case demonstrated that the use of an online form with some multiple choice selections does not override the protections against liability for the actions of users or anonymous members of a Web-based service.

Actual malice in United States law is a legal requirement imposed upon public officials or public figures when they file suit for libel. Unlike other individuals who are less well-known to the general public, public officials and public figures are held to a higher standard for what they must prove before they may succeed in a defamation lawsuit.

Online service provider law is a summary and case law tracking page for laws, legal decisions and issues relating to online service providers (OSPs), like the Wikipedia and Internet service providers, from the viewpoint of an OSP considering its liability and customer service issues. See Cyber law for broader coverage of the law of cyberspace.

Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, is a 1995 U.S. New York Supreme Court decision which held that online service providers could be held liable for the speech of their users.

<i>Cubby, Inc. v. CompuServe Inc.</i>

Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 was a 1991 court decision in the United States District Court for the Southern District of New York which held that Internet service providers were subject to traditional defamation law for their hosted content. The case resolved a claim of libel against CompuServe, an Internet service provider that hosted allegedly defamatory content in one of its forums. The case established a precedent for Internet service provider liability by applying defamation law, originally intended for hard copies of written works, to the Internet medium. The court held that although CompuServe did host defamatory content on its forums, CompuServe was merely a distributor, rather than a publisher, of the content. As a distributor, CompuServe could only be held liable for defamation if it knew, or had reason to know, of the defamatory nature of the content. As CompuServe had made no effort to review the large volume of content on its forums, it could not be held liable for the defamatory content.

Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th 180 (2005) is a California Supreme Court opinion by then-Associate Justice Janice R. Brown interpreting the state's SLAPP statute. Specifically, the case holds that an appeal from a denial of an anti-SLAPP motion stays all trial court proceedings: "The perfecting of an appeal from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion...you have a right not to be dragged through the courts because you exercised your constitutional rights."

<i>Godfrey v Demon Internet Service</i>

Godfrey v Demon Internet Service [2001] QB 201 was a landmark court case in the United Kingdom concerning online defamation and the liability of Internet service providers.

A person who is found to have published a defamatory statement may evoke a defence of innocent dissemination, which absolves him/her of liability provided that he/she had no knowledge of the defamatory nature of the statement, and that his/her failure to detect the defamatory content was not due to negligence. The defence, sometimes also known as "mechanical distributor", is of concern to Internet Service Providers because of their potential liability for defamatory material posted by their subscribers.

Neutral reportage is a common law defense against libel and defamation lawsuits usually involving the media republishing unproven accusations about public figures. It is a limited exception to the common law rule that one who repeats a defamatory statement is just as guilty as the first person who published it.

Modern libel and slander laws, as implemented in many Commonwealth nations as well as in the United States and in the Republic of Ireland, are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as the reign of Edward I (1272–1307), though it is unknown whether any generally applicable criminal process was in place. The first fully reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I (1603-1625). Scholars frequently attribute strict English defamation law to James I's outlawing of dueling. From that time, both the criminal and civil remedies have been found in full operation.

The origins of the United States' defamation laws pre-date the American Revolution; one influential case in 1734 involved John Peter Zenger and established precedent that "The Truth" is an absolute defense against charges of libel. Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the U.S. Supreme Court failed to use it to rule on libel cases. This left libel laws, based upon the traditional "Common Law" of defamation inherited from the English legal system, mixed across the states. The 1964 case New York Times Co. v. Sullivan, however, radically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only when they could prove the media outlet in question knew either that the information was wholly and patently false or that it was published "with reckless disregard of whether it was false or not". Later Supreme Court cases barred strict liability for libel and forbid libel claims for statements that are so ridiculous as to be patently false. Recent cases have added precedent on defamation law and the Internet.

Canadian defamation law refers to defamation law as it stands in both common law and civil law jurisdictions in Canada. As with most Commonwealth jurisdictions, Canada follows English law on defamation issues.

Section 230 of the Communications Decency Act (CDA) of 1996 is a landmark piece of Internet legislation in the United States, codified at 47 U.S.C. § 230. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by third-party users:

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.

<i>Doe v. MySpace Inc.</i>

Doe v. MySpace, 528 F.3d 413, is a 2008 Fifth Circuit Court of Appeals ruling that affirmed a lower court decision finding that MySpace was immune under the Communications Decency Act of 1996 from liability resulting from a sexual assault of a minor.

<i>Fair Housing Council of San Fernando Valley v. Roommates.com, LLC</i>

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, is a case in which the United States Court of Appeals for the Ninth Circuit, sitting en banc, held that immunity under Section 230 of the Communications Decency Act (CDA) did not apply to an interactive online operator whose questionnaire violated the Fair Housing Act. However, the court found that Roommates.com was immune under Section 230 of the CDA for the “additional comments” portion of the website. This case is notable because it placed a limit on the broad immunity that Section 230(c) gives to service providers.

<i>Jane Doe No. 14 v. Internet Brands, Inc.</i>

Jane Doe No. 14 v. Internet Brands, Inc., DBA Modelmayhem.com, No. 12-56638, was a judicial opinion written by Judge Richard R. Clifton of the Ninth Circuit Court of Appeals reversing the district court's dismissal of diversity action alleging negligence under California law.

Hassell v. Bird was a case heard within the California court system related to a court-ordered removal of a defamatory user review of a law firm from the Yelp website. The case, first heard in the California Court of Appeals, First District, Division Four, unanimously ruled in favor of the law firm, ordering Yelp to remove the review in 2016. Yelp refused to remove the review and appealed the decision. In July 2018, the California Supreme Court reversed the order in a closely divided 4-3 decision, stating that Yelp's position fell within Section 230 of the Communications Decency Act as a publisher of user material, and was not required to comply with the trial court's removal order. However, the part of the trial court's decision that ordered the reviewer to remove the defamatory review and pay a monetary judgement were left intact. The Supreme Court of the United States denied to hear the appeal, leaving the California Supreme Court's decision.

References

  1. 1 2 3 4 5 40 Cal.4th 33 , 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.
  2. ↑ Barrett v. Rosenthal, 112 Cal. App. 4th 749; 5 Cal. Rptr. 3d 416 (Cal. App. 1st Dist., November 10, 2003). Opinion available from the Electronic Frontier Foundation.
  3. 1 2 3 4 5 6 7 Kara Platoni (2001-09-05). "War of the Words - An Oakland judge makes a precedent-setting ruling in an Internet libel case". East Bay Express . Archived from the original on 2005-03-02.CS1 maint: BOT: original-url status unknown (link)
  4. 1 2 3 4 McKee, Mike (September 6, 2006). "Calif. High Court Cold to Liability in Online Speech". The Recorder. Archived from the original on 14 March 2009. Retrieved 2009-03-09.
  5. 1 2 3 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 Archived 2008-07-24 at the Wayback Machine
  6. 1 2 3 4 Samson, Martin. "Stephen J. Barrett, et al. v. Ilena Rosenthal". Internet Library of Law and Court Decisions. Archived from the original on 22 April 2009. Retrieved 2009-03-09.
  7. ↑ Supreme Court of the State of California, Barrett v. Clark: Petition for Review available online Archived 2008-10-06 at the Wayback Machine
  8. ↑ Sinrod, Eric J. (December 20, 2006). "How Web providers dodged a big legal bullet". CNET News. Archived from the original on October 22, 2012. Retrieved 2009-03-09.
  9. 1 2 Seyfer, Jessie (November 22, 2006). "Calif. Supreme Court Shields Web Republishers". The Recorder. Archived from the original on 14 March 2009. Retrieved 2009-03-09.
  10. ↑ Kravets, David (September 5, 2006). "California justices frown on Internet libel lawsuits". Associated Press. Archived from the original on 13 March 2009. Retrieved 2009-03-10.
  11. ↑ Brief ofAmici Curiae
  12. ↑ Woodford, Chad (2006). "The California Supreme Court Considers Web Site Immunity" (PDF). The Daily Journal.
  13. ↑ Perle, E. Gabriel; Mark A. Fischer; John Taylor Williams (2007). "Defamation and related issues". Perle & Williams on Publishing Law. 2007 Supplement (3rd ed.). Aspen Publishers Online. p. 12. ISBN   978-0-7355-0448-6.
  14. ↑ Mintz, Howard (November 21, 2006). "Justices hand victory to free speech online". San Jose Mercury News . Archived from the original on 12 March 2009. Retrieved 2009-03-09.
  15. ↑ Savell, Lawrence (December 22, 2006). "Is Your Blog Exposing You to Legal Liability?". Law.com. Archived from the original on 14 March 2009. Retrieved 2009-03-09.
  16. ↑ Anderson, Nate (November 21, 2006). "Internet users cannot be sued for reposting defamatory statements". Ars Technica . Archived from the original on 13 March 2009. Retrieved 2009-03-10.
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