Barrett v. Rosenthal

Decision Date20 November 2006
Docket NumberNo. S122953.,S122953.
Citation51 Cal.Rptr.3d 55,146 P.3d 510,40 Cal.4th 33
CourtCalifornia Supreme Court
PartiesStephen J. BARRETT et al., Plaintiffs and Appellants, v. Ilena ROSENTHAL, Defendant and Respondent.

Deidre K. Mulligan for Law Professors with Expertise in Internet Law as Amicus Curiae on behalf of Defendant and Respondent.


In the Communications Decency Act of 1996, Congress declared: "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." (47 U.S.C. § 230(c)(1).)1 "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." (§ 230(e)(3).)

These provisions have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source. The immunity has been applied regardless of the traditional distinction between "publishers" and "distributors." Under the common law, "distributors" like newspaper vendors and book sellers are liable only if they had notice of a defamatory statement in their merchandise. The publisher of the newspaper or book where the statement originally appeared, however, may be held liable even without notice.

In this case, the Court of Appeal diverged from the prevailing interpretation of section 230. It decided 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.

We granted review to decide whether section 230 confers immunity on "distributors." Because this case involves the liability of an individual rather than a service provider, we asked the parties to address the definition of the statutory term "user." We also requested briefing on whether the immunity analysis is affected if a user engages in active rather than passive conduct. We conclude that section 230 prohibits "distributor" liability for Internet publications. We further hold that section 230(c)(1) immunizes individual "users" of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal's judgment.

We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.


Plaintiffs, Dr. Stephen J. Barrett and Dr. Terry Polevoy, operated Web sites devoted to exposing health frauds. Defendant Ilena Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Plaintiffs alleged that Rosenthal and others committed libel by maliciously distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs' character and competence and disparaging their efforts to combat fraud.2 They alleged that Rosenthal republished various messages even after Dr. Barrett warned her they contained false and defamatory information.

Rosenthal moved to strike the complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16; SLAPP is an acronym for strategic lawsuit against public participation.) She claimed her statements were protected speech, and argued that plaintiffs could not establish a probability of prevailing because she was immune under section 230. (See Code Civ. Proc., § 425.16, subd. (b); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) She also contended her statements were not actionable.

The court granted the motion, finding that Rosenthal's statements concerned an issue of public interest within the scope of the anti-SLAPP statute, and were, for the most part, not actionable because they contained no provably false assertions of fact. Plaintiffs do not challenge that ruling. The court determined that the only actionable statement appeared in an article Rosenthal received via e-mail from her codefendant Tim Bolen. This article, subtitled "Opinion by Tim Bolen," accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of this article on the Web sites of two newsgroups devoted to alternative health issues and the politics of medicine, not on the site of her own discussion group. According to Rosenthal, these newsgroups were part of "the wild west of the Internet," with "no administrators and no one to enforce rules of conduct."3 The trial court ruled that this republication was immunized by section 230(c)(1).

The Court of Appeal vacated the order granting the motion to strike insofar as it applied to Dr. Polevoy. It held that section 230 did not protect Rosenthal from liability as a "distributor" under the common law of defamation. We granted Rosenthal's petition for review.4


The leading case on section 230 immunity rejected the "distributor" liability theory adopted by the Court of Appeal here. (Zeran v. America Online, Inc. (4th Cir.1997) 129 F.3d 327, 331-333 (Zeran).) We first discuss the Zeran holding and rationale, then the Court of Appeal's contrary analysis.5 Recognizing "distributor" liability would have a dramatic impact on Internet service providers. We agree with the Zeran court that Congress did not intend to create such an exception to section 230 immunity.6

Rosenthal, however, is not a service provider, at least with respect to the newsgroups where she posted the Bolen article. This appears to be the first published case in which section 230 immunity has been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an "interactive computer service" under the broad definition provided in the CDA. (§ 230(f)(2); see fn. 7, ante.) Accordingly, we asked the parties to brief the meaning of the term "user" in section 230, and whether any distinction might be drawn between active and passive use under the statute. In part C of our discussion, we conclude that Congress employed the term "user" to refer simply to anyone using an interactive computer service, without distinguishing between active and passive use.

A. Zeran

Kenneth Zeran was bombarded with angry and derogatory telephone calls, including death threats, after an unidentified person posted a message on an America Online, Inc. (AOL) bulletin board. The message advertised t-shirts with offensive slogans referring to the Oklahoma City bombing of the Alfred P. Murrah Federal Building, and instructed prospective purchasers to call Zeran's home telephone number. Zeran notified AOL of the problem, and the posting was eventually removed. However, similar postings appeared, and an Oklahoma radio announcer aired the contents of the first message. Zeran was again inundated with threatening phone calls. He sued AOL for unreasonable delay in removing the defamatory messages, refusing to post retractions, and failing to screen for similar postings. (Zeran, supra, 129 F.3d at pp. 328-329.)

AOL successfully moved for judgment on the pleadings, relying on section 230. (Zeran, supra, 129 F.3d at pp. 329-330.) The Fourth Circuit Court of Appeals affirmed, holding that the plain language of section 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions— such as deciding whether to publish, withdraw, postpone or alter content—are barred." (Zeran, at p. 330.)

Referring to the congressional finding that the Internet has flourished "with a minimum of government regulation" (§ 230(a)(4)...

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