A good day for users
Today the Supreme Court of California issued its much-looked-for decision [warning, pdf] in Barrett v. Rosenthal. Unlike that kooky dicta-ridden Craigslist case from last week, this one falls right in line with Zeran and lets online service providers (and users!) breathe a sigh of relief.
It's based on some strange facts. Rosenthal, the defendant, forwarded an allegedly defamatory article written by someone else to a newsgroup. The statute, 47 USC 230(c)(1), says 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.” But the “user” part hadn't come up before in litigation.
Who's a “user”? The court decides that a user is — a user. Anyone using an interactive computer service. So by forwarding or posting the article, Rosenthal was a user. She shouldn't be treated as the information content provider and held liable for its content, because she didn't write the article.
The strongest and most useful part of the opinion squelches the argument that “distributor” liability was somehow left untouched by Section 230. If this argument had prevailed, “publishers” would be immunized from defamation liability, but “distributors” would be on the hook if they “knew or had reason to know” that there was some potentially defamatory material on their servers.
Nonsense, the court says. This would be terrible for interactive computer services — an impossible burden — because every time they received notice of something potentially defamatory (had “had reason to know” such a thing) they'd have to make a judgment about it and decide whether or not to continue the publication. Far too many bits flying around for that to make sense.
My favorite section of the opinion is the part pointing out that the legislative history of the Dot Kids Implementation and Efficiency Act, 47 USC 941, includes specific language making clear that registrars and registries with responsibility for .kids.us are “interactive computer services” for the purposes of Section 230. The committee report prepared in connection with the Act says that Zeran etc. was correctly decided. Bravo.
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Doesn't this decision mean that any defamatory material can be laundered by being forwarded by a third party, who is not liable even if he or she *knows* that the material is defamatory? That seems to me to be too broad of an exemption from liability.
Jim — The court's point is that you need to find, and sue, the originator of the content that you think is defamatory, rather than an intermediary. There are ways to file “John Doe” complaints to get to the identity of the originator, and courts who have a real, good-faith defamation claim in front of them will help the plaintiff get that information.
My own view is that defamation law, like the “derivative works” right in copyright law, was designed for another era and doesn't fit the one we're in very well. But that's a discussion for another day.
But my point is this–even if you successfully go after the originator, this ruling means that you have *no remedy* against those who knowingly continue to republish defamatory material. This opens the door to judgment-proof individuals (say, poor bloggers) being used to originate material for the use of malicious republishers who spread it far and wide.