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How Is Libel Different in Cyberspace?
Author Michael Perelman
Date 01/08/14/01:54
Hit Count 692

August 9, 2001

CYBER LAW JOURNAL

How Is Libel Different in Cyberspace?

By CARL S. KAPLAN

here's an old legal adage that "talebearers are as bad as
talemakers."

A talemaker, as you might guess, is someone who wrongly
communicates or publishes a whopper of a lie about someone else.
That person may be guilty of defamation. In addition -- and here's
the kicker -- a person who carelessly or recklessly re-publishes or
circulates a defamation -- the talebearer -- may also be guilty of
libel. After all, as courts have long pointed out, the last
utterance of a false statement that injures a person's reputation
may do just as much harm as the first.

But what happens when arguably libelous material is not
re-published by a talebearer in a newspaper or magazine on terra
firma but is "re-posted" in an Internet news group or bulletin
board -- an interactive environment that tends to be chock full of
re-postings, musings and hyperbolic statements. Does the standard
rule that a re-publisher of a libel may be in hot water apply in
cyberspace?

That novel question was tackled recently by a trial court in
Oakland, California.

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. In a sense,
Judge Richman 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."

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.

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," Grell said.

Grell 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 defamatory, or in reckless disregard of its
truth or falsity -- in other words, if the re-poster acted with
"malice," in legal jargon -- the re-poster would be off the hook.

For her part, Ilena Rosenthal, who directs the Humantics Foundation
for Women in California and who operates an Internet discussion
group devoted to breast-implant issues, called the ruling a "total
relief."

Experts in the field of Internet law and libel offered widely
differing views of the wisdom of Judge Richman's interpretation of
section 230 of the Communications Decency Act.

Ian Ballon, a lawyer with Manatt, Phelps & Phillips in Palo Alto
and editor of a cyberlaw treatise, "E-Commerce and Internet Law
(Glasser LegalWorks, 2001)," said that he believed that many
courts, including Judge Richman's, have construed the scope of
section 230 more broadly than Congress intended.

Congress's purpose in crafting section 230 was to reverse the
outcome of a 1995 New York court decision that held ISP's
potentially liable for illegal messages created by subscribers,
Ballon said. Unless that court-made rule was legislatively
overturned, he added, there was a risk that ISPs would shut down
news groups and bulletin boards. In addition, by passing section
230 Congress also wished to encourage ISP's to monitor and filter
certain harmful content, said Ballon.

Yet those aims are far afield from the activities of individual
re-posters of libels on the Internet, Ballon said. Congress "did
not intend to provide a free pass to someone who acts with impunity
and posts information that he or she knows to be false simply
because he didn't write it," said Ballon.

David P. Miranda, a libel and intellectual property expert in
Albany, New York, who has written articles about Internet
defamation, said he agrees with the view that Judge Richman's
decision is beyond the scope of Congress's intent. He also noted
that Judge Richman's decision, if it is upheld and adopted by other
courts, could pose mischief.

Suppose, he said, the author of a libel posts it initially in an
obscure corner of the Internet. Not much harm is done to the
victim. But then suppose, too, that another person takes up the
libel and re-posts it in hundreds or even thousands of news groups,
causing vast damage to the victim. "The re-poster is the one
responsible for more damages, and he can walk away," said Miranda.

Other lawyers said that they agreed with the court's ruling and its
effect of increasing the level of debate and freedom in Internet
discourse.

Mark Goldowitz, Rosenthal's attorney and the director of the
California Anti-SLAPP Project, a public-interest law firm in
Oakland, California, that fights lawsuits -- often called SLAPPs
brought by corporations or individuals against defendants who
oppose them on public issues, said that Judge Richman read section
230 correctly.

"I think the decision is important because it extends the sphere of
freedom of speech on the Internet beyond what is available in the
hard-copy world," he said. "Congress said we don't want to squelch
the Net and we are going to allow greater freedom on the Net than
in the non-Internet community."

Asked why it might make sense for the law to punish a libel
re-publisher on terra firma but grant him immunity in cyberspace,
Goldowitz pointed to the increased and low-cost ability of victims
of defamation to use the Internet to quickly refute attacks.
"That's why this rule makes sense," he said. "The whole premise of
the Net is that everyone has the opportunity to put out ideas. If
you disagree with someone you can just set up a news group or set
up a Web site."

In the California libel case, according to legal papers, attorney
Grell and two doctors who investigate purported health fraud,
Stephen J. Barrett, M.D., of Pennsylvania and Terry Polevoy, M.D.,
of Waterloo, Canada, charged that several defendants involved in
the alternative medicine movement published messages on the
Internet and in other channels that defamed them.

One message, allegedly written by a defendant, Tim Bolen, stated,
among other things, that Dr. Polevoy had stalked a Canadian radio
producer of alternative medical programs. In August of last year,
according to the complaint, Ms. Rosenthal re-posted the Bolen
message to one or more news groups. Dr. Barrett contacted her and
told her that the Bolen message contained false and defamatory
information about Dr. Polevoy, and threatened suit. Instead of
withdrawing the message, however, Rosenthal posted messages about
Dr. Barrett's threat accompanied by an additional re-posting of the
Bolen statement, according to the complaint.

Judge Richman's ruling dismissed the charges against Rosenthal. The
case against the other defendants is pending. In addition, Dr.
Barrett said in an interview that he has filed libel cases in
Illinois and Canada charging additional defendants with re-posting
on the Internet defamatory statements about him.

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