(Adapted
from an article in the Cyber Law Journal by Carl S Kaplan)
Reposting A Libellous
Message Is O.K. In Cyberspace,
Says U S Judge
A trial court judge in California has interpreted a U.S.
law to mean that a person who re-posts libellous information on the Internet is
protected against libel suits. The ruling stands a dramatic contrast to
traditional libel law, which holds that someone who carelessly or recklessly
circulates a defamation may be just as guilty as the originator of the libel.
Does the standard rule that a re-publisher of libel
is also potentially guilty of libel apply in cyberspace? That novel question
was tackled recently by a trial court in Oakland, California. And in perhaps
the first written ruling of its kind, and in what lawyers like to call a case
of first impression, Judge James A. Richman of the California Superior Court
for the County of Alameda, in Oakland, ruled that an individual¿s repeated
re-postings to news groups of an allegedly libelous message originally authored
and posted by another person is protected by federal law. The judge in this
case gave a broad interpretation to a federal law passed to protect Internet
service providers and news group operators from being held responsible for
postings made by third-party individuals.
Judge Richman noted in his July 25th decision in the case, called Barrett v.
Clark, that the guilty party is the person who created and initially posted the
information, assuming, of course, that the original statement amounted to a
libel, which is difficult to prove. He concluded, a cyber talebearer is
completed shielded from liability, although the original author of a libel
posted on the Internet may be subject to legal action and damages. In reaching
his decision, which resulted in the dismissal of libel claims against Ilena
Rosenthal, an alternative health advocate based in San Diego, California, Judge
Richman noted that although portions of the Communications Decency Act were
struck down by the Supreme Court in 1997, a surviving part of the law --
section 230(c)(1) -- 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."
By its plain words, reckoned the court, that law
creates a federal immunity to any cause of action that would make Internet
service providers or users liable for information created by a third party.
Previously, courts have applied section 230 to shield providers such as AOL
from liability for illegal statements written by subscribers. But Judge Richman
saw no reason not to apply the shield to an individual, too. "It is
undisputed that Rosenthal did not ¿create¿ or ¿develop¿ the information"
in the article she re-posted, which was originally written by another person,
wrote the court. "Thus, as a user of an interactive computer service, that
is, a news group, Rosenthal is not the publisher or speaker of [the] piece.
Thus, she cannot be civilly liable for posting it on the Internet. She is
immune."
Christopher E. Grell, an Oakland lawyer who is
representing himself and two other plaintiffs in the case, said that earlier
this week he asked Judge Richman to reconsider his order. If Grell and his
associates lose the next round, they plan to appeal up through the California
court system and eventually to the United States Supreme Court, Grell said.
"What this ruling does is open the door for any number of wrongdoers to just basically take something that¿s libelous, republish it and claim immunity, he said. He added that based on the court¿s reasoning, Internet re-publishers of libels are immune from suit however culpable they might be. Even if a person re-posted a message in full knowledge that it was false and