Internet Service Providers and Users Are Immune From Defamation Liability for Republication

In Barrett v. Rosenthal (2006) 40 C.4th 33, 51 C.R.3d 55, 146 P.3d 510, plaintiffs sued defendant, an individual, for libel, alleging that she maliciously republished certain messages and postings on the Internet after being warned that they were defamatory. The trial court granted defendant's motion to strike the complaint under the anti-SLAPP statute (see 5 Cal. Proc. (4th), Pleading, §962 et seq.), but the Court of Appeal reversed. Held, reversed.

(a) Statutory immunity and common law background. Under the Communications Decency Act of 1996, "[n]o 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" (47 U.S.C., §230(c)(1)), and "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section" (47 U.S.C., §230(e)(3)). These provisions have been widely and consistently interpreted to confer broad immunity against defamation liability for persons using the Internet to publish information that originates from another source. The immunity has been applied regardless of the traditional distinction between "publishers" and "distributors." Distributors (e.g., newspaper vendors and book sellers) are liable at common law only if they had notice of the defamatory nature of the statement. However, the publisher of the newspaper or book where the statement originally appears may be held liable at common law even without notice. Here, the Court of Appeal diverged from the prevailing interpretation of 47 U.S.C., §230 by holding that common law "distributor" liability survived the congressional grant of immunity, so that Internet service providers and users are exposed to liability if they republish a statement with notice of its defamatory character. This construction of the statute is incorrect. (40 C.4th 41.)

(b) Application of immunity to distributors. This federal statutory immunity provision applies to distributors, as well as publishers. (40 C.4th 41.)

(1) The leading case on 47 U.S.C., §230 immunity, Zeran v. America Online (4th Cir. 1997) 129 F.3d 327, rejected the distributor liability theory that was adopted here by the Court of Appeal. (40 C.4th 45.) The Zeran court's views have been broadly accepted in both federal and state courts, including two other California Courts of Appeal. (2006 WL 3346218, p. 5, citing Kathleen R. v. Livermore (2001) 87 C.A.4th 684, 104 C.R.2d 772, and Gentry v. eBay (2002) 99 C.A.4th 816, 121 C.R.2d 703.)

(2) The Zeran court's construction of the term "publisher" in 47 U.S.C., §230(c)(1) to include "distributor" is sound. Given that distributors are also known as "secondary publishers," there is little reason to believe that Congress felt it necessary to address them separately. There is even less reason to suppose that Congress intended to immunize "publishers" but leave "distributors" open to liability, because the responsibility of publishers for offensive content is greater than that of mere distributors. (40 C.4th 48.)

(3) The legislative history reflects a congressional intent to broadly shield from liability all providers of online content provided by others, and not to maintain the common law distinction between publishers and distributors. (40 C.4th 50.)

(4) The Zeran court identified three deleterious effects that would flow from reading 47 U.S.C., §230 to permit liability of Internet distributors where there is notice. First, providers of information on the Internet who received notification of a defamatory message would be subject to liability only for maintaining the message, not for removing it. This fact, together with the burdens involved in evaluating the defamatory character of messages, would provide a natural incentive to simply remove messages on notification, chilling the freedom of Internet speech. Second, notice-based liability would deter providers from actively screening the content of material received, because discovering potentially defamatory material would only increase the provider's liability. Finally, notice-based liability would give third parties a cost-free means of manufacturing claims. (40 C.4th 54.) The volume and range of Internet communications make the "heckler's veto" a real threat to free speech under the Court of Appeal's holding. (40 C.4th 57.)

(c) Application of immunity to individual users. The immunity provision immunizes individual "users" of interactive computer services, such as defendant here, as well as the providers of these services. "User" is not defined in the statute, and the limited legislative record does not indicate why Congress included users as well as service providers under the umbrella of immunity granted. However, "user" plainly refers to someone who uses something, and the statutory context makes it clear that Congress simply meant someone who uses an interactive computer service. (40 C.4th 58.)

(d) Application of immunity to active use. The immunity applies whether the use is active or passive. The term "user" is not limited to those who simply receive offensive information or who screen and remove that information from an Internet site, but extends to persons who actively post or republish information. A user who merely receives information on a computer without making it available to anyone else would be neither a "publisher" nor a "speaker" under 47 U.S.C., §230(c)(1). Congress obviously had a broader meaning in mind. (40 C.4th 59.)

(e) Conclusion. "The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications. Nevertheless, by its terms section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as 'distributors,' nor does it expose 'active users' to liability. Plaintiffs are free under section 230 to pursue the originator of a defamatory Internet publication. Any further expansion of liability must await Congressional action." (40 C.4th 62.)

A concurring opinion suggests that an Internet publisher who conspires with the author of a defamatory statement would not be immune under the statute. However, there was no prima facie showing of conspiracy here. (40 C.4th 63.)

Witkin References

On effect of republication of defamatory statement generally, see 5 Summary (10th), Torts, §537.

On what constitutes publication, see 5 Summary (10th), Torts, §535.

On defenses to liability for defamation generally, see 5 Summary (10th), Torts, §556 et seq.

On preemption by federal law, see 7 Summary (10th), Constitutional Law, §8 et seq.