Let’s say there’s this guy who really gets under your skin; let’s call him Mr. Smith. Let’s say you dislike Mr. Smith so much that you want to torpedo his career by spreading untrue and defamatory rumors about him — that he cheats on his taxes, say, or sniffs rubber cement. Let’s say you write these accusations up and send them to a newspaper, which reprints your allegations without bothering to fact-check them. What happens when Mr. Smith picks up the paper? Most likely, both you and the paper will be slapped with a libel suit, and most likely, Mr. Smith will win. But what if instead of sending your letter to the newspaper, you e-mailed it to a friend who posted it to an Internet newsgroup? Can Mr. Smith still sue both of you? An Oakland judge’s answer might surprise you.
Last month, California Supreme Court judge James A. Richman heard what may be the nation’s first case specifically dealing with the issue of reposting libelous material on the Internet. In a 27-page ruling, Richman wrote that while someone who creates defamatory material can be sued for damages, someone who merely repeats it on the Internet is protected by federal law, specifically a 1996 statute called the Communications Decency Act (CDA). Originally intended to protect Internet service providers (ISPs) such as Yahoo! or AOL from being held responsible for libelous matter generated in chat rooms and on bulletin boards, section 230 of the CDA states 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.” In other words, the ISP is not responsible for the bad behavior of its subscribers.
The Oakland case, formally known as Barrett v. Clark, is the first to apply section 230’s protections to an individual person, rather than a corporate entity like an ISP. Richman’s decision will doubtless have major repercussions for Internet users; after all, it’s a medium where communication relies heavily upon quoting and reposting the comments of others, and where much material is posted anonymously or pseudonymously. While civil liberties activists are cheering the ruling as a clear victory for free speech in cyberspace, critics fear that allowing people to repost potentially libelous material on the Internet with impunity will spur reckless behavior.
Barrett v. Clark didn’t start off sounding much like a free-speech case, and it didn’t begin in Oakland at all. The suit was filed in November 2000 by retired psychiatrist Dr. Stephen Barrett and Dr. Terry Polevoy (residents of Pennsylvania and Canada, respectively), both of whom have made careers of debunking what they claim is junk science. Barrett runs not one but six Web sites devoted to consumer and medical fraud, including one called Quackwatch.com; he has questioned the validity of everything from vitamins to the paranormal to the teachings of Deepak Chopra. Polevoy is a medical doctor and also runs a Web site exposing health frauds.
Barrett and Polevoy seem to have found an archrival in Hulda Clark, a woman who has written a book claiming that all cancers are caused by an intestinal fluke that can be removed with the help of herbal medicine and self-administered low-voltage shocks from a battery-operated “zapper” (both of which she is conveniently willing to sell you). Clark operates a clinic in Tijuana, Mexico, and also sells her products and books over the Internet.
What began as a war of the words between the quackbuster camp and Clark’s supporters escalated after Clark allegedly hired a man named Tim Bolen to handle her public relations. According to Barrett and Polevoy’s suit, Bolen began circulating a letter on the Internet that, among other unflattering claims against the quackbusters, accused Polevoy of stalking a radio reporter and preventing her from airing a show about alternative medicine. The letter also asked people to send letters of complaint about Polevoy to the Ontario College of Physicians and Surgeons.
Somewhere along the line, a San Diego woman named Ilena Rosenthal, who runs an Internet-based support group for women who have medical problems resulting from breast implants, came across Bolen’s letter and reposted it to two alternative-medicine newsgroups. Barrett contacted her, told her the letter was libelous, and threatened suit if she didn’t remove it. Rosenthal merely reposted Bolen’s letter as well as Barrett’s threat. When Barrett and Polevoy finally filed their suit against Clark and Bolen, Rosenthal was included as a defendant as well. In fact, because the plaintiffs’ attorneys were unable to track down either Clark or Bolen to serve them with the suit, Rosenthal became the only defendant available for trial. (Currently, Barrett also has three other libel suits in progress in different cities.)
Enter Oakland attorney Mark Goldowitz of the California Anti-SLAPP Project. A SLAPP suit — or a Strategic Lawsuit Against Public Participation — is filed to drain the funds and energy of a political opponent through litigation, and Goldowitz believed that Rosenthal, as a proponent of alternative medicine, was being “SLAPPed” by the quackbusters. He filed a motion to strike her from the suit, arguing that Rosenthal should not be held accountable for libelous material that she had not written, but merely reposted.
While Judge Richman’s ruling barely mentioned the SLAPP charges, he agreed with Goldowitz about Rosenthal’s immunity. Trial court judges rarely issue lengthy written opinions, yet Richman’s ruling dismissing Rosenthal from the suit meticulously explains his reasoning. “It is undisputed that Rosenthal did not ‘create’ or ‘develop’ the information in defendant Bolen’s piece,” he wrote. “Thus, as a user of an interactive computer service, that is, a newsgroup, Rosenthal is not the publisher or speaker of Bolen’s piece. Thus, she cannot be civilly liable for posting it on the Internet. She is immune.”
Perhaps more importantly, Richman made it clear that he believes the courts should hold Internet communications to a different standard than printed media. Richman’s ruling cites a decision made earlier this year in the case of Global Telemedia International v. Doe, in which critical comments made in an Internet chat room were held to be “non-actionable opinion and rhetoric” because they were “part of an on-going free-wheeling and highly animated exchange” on the Internet where the “postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents.” In other words, the language people use on the Internet is brasher than what they use elsewhere and therefore criticisms and insults posted on the Internet should be held to a looser standard.
Groups like the San Francisco-based Electronic Frontier Foundation (EFF), which advocates for free speech in the online world, applauded Richman’s ruling, saying that it recognizes essential protections established in the CDA.
“Offending someone is really not completely about what one person is saying to another person — it’s a clash of expectations or cultures or communities,” says EFF attorney Lee Tien. “Defamation law to a large extent is about which community’s norms should rule. We recognize that there has come to be a distinctive style of communication on the Internet and its most public places, like Usenet and Yahoo! bulletin boards. Should we be able to use the social norms of the pages of the Wall Street Journal to judge the speech of posters on [investment bulletin-board site] Raging Bull?”
Not only do people communicate differently on the Internet, they also do it more quickly. According to Goldowitz, the ability to respond quickly to false claims makes Internet libel different from print libel. “It’s not like the defamation is out there unanswered for weeks or months or days. You can get a response up in an hour or two; you can say, ‘This is wrong; here are the documents,'” says Goldowitz.
But Barrett says it’s not nearly that easy. “Do you know what it is to respond on the Internet?” he asks exasperatedly. “First you have to find the [libelous] messages and you have to find a way to monitor every day if you want to get them all. They also [travel] by e-mail and there’s no way to trace that. There’s also no way to be sure that the people who read the first message are going to read the second. People don’t stay on lists.” He also points out that battles in the court of public opinion are rarely winnable. “Who wants to get involved in a battle over whether [Polevoy] is a stalker?” Barrett asks. “People shouldn’t have to respond to libel by getting into a public debate.”
Barrett and other critics argue that Richman’s interpretation of section 230 is overly broad. “With all due respect to the court, it was not the right decision,” says Christopher Grell, the Oakland attorney for the plaintiffs. “I think the CDA wanted to allow the free expression of ideas but not allow someone to harass an individual or company by protecting them from [liability for] things that they do intentionally.” They worry that if the ruling stands, unscrupulous people will take advantage of the immunities given to reposters. “It would end all libel protection on the Internet, absolutely, totally, 100 percent,” says Barrett. “The judge’s ruling would permit a person to publish something anonymously or under a false name and then quote themselves. What the judge said is that we have a right to go after the original libeler, but that may not be a real person, or they may be in a foreign country; they may be somebody we could never find. There are all kinds of mischievous possibilities.”
Grell plans to appeal the case all the way up to the US Supreme Court if necessary. “It’s an attempt to put some decency back into the Communications Decency Act,” he says. (Although Rosenthal has been dismissed from Barrett v. Clark, the suit will still go on against the remaining defendants whenever they turn up.) Grell has filed a motion for consideration to reverse Richman’s decision, as well as a notice of appeal in case the judge doesn’t reconsider.
Rosenthal’s attorneys say they welcome further legal challenges because they’re confident their victory will be reaffirmed by a higher appellate court; they think that concerns about the misapplication of Richman’s ruling are vastly overstated. “Whenever society decides that certain kinds of discussions should be constitutionally protected, there is always the potential danger that there might be some uses of that right of expression that we might not agree with or might cause damage,” says Goldowitz. “But in the big picture, the frequency of that is going to be much, much, much smaller than the number of situations where this will appropriately expand the freedom of discussion on the Internet.”