Sign Up
Stay current with GH&R Newsletters. Click here to sign up.
E-Commerce News
California Supreme Court Applies Section 230 Immunity To Republisher; Craiglist Immune From Fair Housing Liability
February 27, 2007
CALIFORNIA SUPREME COURT APPLIES SECTION 230 IMMUNITY TO REPUBLISHERThe immunity provided by Section 230 of the Communications Decency Act continues to occupy state and federal courts across the country. Recently the California Supreme Court ruled that the immunity protected a poster who put up defamatory material she found elsewhere on the Internet.
Key to the California court’s decision was its conclusion that Congress intended to provide immunity to both "publishers" and subsequent "distributors" of allegedly defamatory online speech.
The case arose when plaintiffs, Stephen J. Barrett and Timothy Polevoy, two prominent doctors who published information about "health frauds and quackery" sued the defendant, Ilena Rosenthal. Rosenthal was an active participant on several online newsgroups that discuss alternative medicine. In the course of an online discussion, Rosenthal posted an article written by co-defendant Tim Bolen, in which Bolen accused Polevoy of stalking a radio producer.
At the trial, the court ruled that Rosenthal’s republication was immune under Section 230. The intermediate appellate court reversed, however, finding that while Section 230 immunizes publishers from defamation liability, it does not apply to distributors such as Rosenthal.
In common law defamation actions, there exists a distinction between "publishers" and "distributors." A publisher of a defamatory statement--i.e., the place where the statement originally appeared— may be strictly liable for the defamation. Distributors, such as booksellers, could be liable only if they had notice of the defamatory materials in their offerings.
In Zeran v. America Online, an early case that addressed Section 230, the court held that the publisher/distributor distinction made no difference for purposes of Section 230 immunity. According to the Zeran court, congress's twin policy objectives of promoting robust online speech and encouraging self-regulation of offensive speech by service providers would be frustrated by interpreting Section 230 to preserve distributor liability.
The Zeran court also noted that notice-based liability would chill online speech by putting service providers at risk of liability whenever they received notice of a potentially defamatory statement. And notice-based liability would deter service providers from self-regulating offensive material on their networks.
In adopting the Zeran holding, the California high court noted that Zeran 's interpretation of Section 230 had been widely accepted in federal and state courts. The California Supreme Court held that its view of Section 230's legislative history clearly supported the broad immunity outlined by Zeran. The intermediate appellate court gave "insufficient consideration to the burden its rule would impose on Internet speech," according to the Supreme Court.
The Supreme Court did note, however, that Section 230 immunity is not without limits. For example, a publisher's involvement in the creation of a defamatory Internet posting could become so extensive that the publisher itself could be held liable as the original source. In this case, however, Rosenthal could not be considered “the original source” because she did nothing more than re-post the article unchanged from its original source.
A concurring justice added an interesting wrinkle to the analysis, however, by noting that online republishers of defamatory material could be held liable under a conspiracy theory. Under this theory, if a third-party's defamatory statements were distributed as part of a "preconceived plan and unity of design and purpose" between the third-party speaker and the distributor, then Section 230 would not immunize the republication of the defamatory statements.
The conspiracy theory probably makes sense, given the potential for abuse afforded by Section 230’s broad immunity. But that theory could also provide a loophole wide enough to render the immunity meaningless.
CRAIGSLIST IMMUNE FROM FAIR HOUSING LIABILITY
Meanwhile, a United States District Court in Chicago recently ruled that Craigslist, the free online classified service, may assert Section 230 immunity to defeat a claim by a civil rights group that certain housing ads posted on the service violated the federal Fair Housing Act. While the court found that Congress did not intend for section 230 immunity to insulate Internet services from all forms of liability, the immunity does apply to all claims in which the act of publication is an essential element. Since the alleged civil rights violation was based on the publication of advertisements, the immunity applied.
The plaintiffs asked the court to analyze the immunity issue in light of the entire context of the “good Samaritan” provisions of Section 230. Section 230(c)(1), 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."
The second provision, Section 230(c)(2), immunizes an interactive service provider for voluntarily removing or restricting access to obscene, violent, or otherwise objectionable material.
According to plaintiffs, Section 230(c)(1) is purely definitional and does not convey any immunity in and of itself. It merely describes the subset of providers who qualify for immunity under Section 230(2). Under this theory, the only providers who would get immunity would be those that actively censor content on their system.
Craigslist argued, however, that Section 230(c)(1) is a stand alone immunity provision that protects service providers from all liability for content that originates from someone else, whether or not the service provider censors the material.
The district court adopted neither argument. It rejected plaintiff’s “definitional” argument, noting that while Section 230(c)(1) might not explicitly reference liability or immunity, it nonetheless has that effect. Any cause of action that hinges on publication would be defeated by a finding that the provider is not a publisher.
But the court was not willing to go so far as Craigslist argued. The court felt that the proper interpretation of Section 230 required it to limit "the immunity afforded under Section 230 to those claims that require 'publishing' as an essential element--as opposed to any cause of action.”
That limited finding was still good news for Craiglist, because the plaintiffs' case required a finding that Craiglist was the publisher of the allegedly discriminatory third-party ads. For that reason, the CDA immunity applied.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.