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Source: New York Times

Posted on August 13, 2001

      There's an old legal adage that "talebearers are as bad as talemakers."

      A talemaker, as you might guess, is someone who wrongly communicates or publishes a whopper of a lie about someone else. That person may be guilty of defamation. In addition -- and here's the kicker -- a person who carelessly or recklessly re-publishes or circulates a defamation -- the talebearer -- may also be guilty of libel. After all, as courts have long pointed out, the last utterance of a false statement that injures a person's reputation may do just as much harm as the first.

      But what happens when arguably libelous material is not re-published by a talebearer in a newspaper or magazine on terra firma but is "re-posted" in an Internet news group or bulletin board -- an interactive environment that tends to be chock full of re-postings, musings and hyperbolic statements. Does the standard rule that a re-publisher of a libel may be in hot water apply in cyberspace?

      That novel question was tackled recently by a trial court in Oakland, California.

      In perhaps the first written ruling of its kind, and in what lawyers like to call a case of first impression, Judge James A. Richman of the California Superior Court for the County of Alameda, in Oakland, ruled that an individual's repeated re-postings to news groups of an allegedly libelous message originally authored and posted by another person is protected by federal law. In a sense, Judge Richman concluded, a cyber talebearer is completed shielded from liability, although the original author of a libel posted on the Internet may be subject to legal action and damages.

      In reaching his decision, which resulted in the dismissal of libel claims against Ilena Rosenthal, an alternative health advocate based in San Diego, California, Judge Richman noted that although portions of the Communications Decency Act were struck down by the Supreme Court in 1997, a surviving part of the law -- section 230(c)(1) -- provides 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."

      By its plain words, reckoned the court, that law creates a federal immunity to any cause of action that would make Internet service providers or users liable for information created by a third party. Previously, courts have applied section 230 to shield providers such as AOL from liability for illegal statements written by subscribers. But Judge Richman saw no reason not to apply the shield to an individual, too.

      "It is undisputed that Rosenthal did not 'create' or 'develop' the information" in the article she re-posted, which was originally written by another person, wrote the court. "Thus, as a user of an interactive computer service, that is, a news group, Rosenthal is not the publisher or speaker of [the] piece. Thus, she cannot be civilly liable for posting it on the Internet. She is immune."

      Judge Richman noted in his July 25th decision in the case, called Barrett v. Clark, that the guilty party is the person who created and initially posted the information, assuming, of course, that the original statement amounted to a libel, which is difficult to prove.

      Christopher E. Grell, an Oakland lawyer who is representing himself and two other plaintiffs in the case, said that earlier this week he asked Judge Richman to reconsider his order. If Grell and his associates lose the next round, they plan to appeal up through the California court system and eventually to the United States Supreme Court, Grell said.

      "What this ruling does is open the door for any number of wrongdoers to just basically take something that's libelous, republish it and claim immunity," Grell said.

      Grell added that based on the court's reasoning, Internet re-publishers of libels are immune from suit however culpable they might be. Even if a person re-posted a message in full knowledge that it was false and defamatory, or in reckless disregard of its truth or falsity -- in other words, if the re-poster acted with "malice," in legal jargon -- the re-poster would be off the hook.

      For her part, Ilena Rosenthal, who directs the Humantics Foundation for Women in California and who operates an Internet discussion group devoted to breast-implant issues, called the ruling a "total relief."

      Experts in the field of Internet law and libel offered widely differing views of the wisdom of Judge Richman's interpretation of section 230 of the Communications Decency Act.

      Ian Ballon, a lawyer with Manatt, Phelps & Phillips in Palo Alto and editor of a cyberlaw treatise, "E-Commerce and Internet Law (Glasser LegalWorks, 2001)," said that he believed that many courts, including Judge Richman's, have construed the scope of section 230 more broadly than Congress intended.

      Congress's purpose in crafting section 230 was to reverse the outcome of a 1995 New York court decision that held ISP's potentially liable for illegal messages created by subscribers, Ballon said. Unless that court-made rule was legislatively overturned, he added, there was a risk that ISPs would shut down news groups and bulletin boards. In addition, by passing section 230 Congress also wished to encourage ISP's to monitor and filter certain harmful content, said Ballon.

      Yet those aims are far afield from the activities of individual re-posters of libels on the Internet, Ballon said. Congress "did not intend to provide a free pass to someone who acts with impunity and posts information that he or she knows to be false simply because he didn't write it," said Ballon.

      David P. Miranda, a libel and intellectual property expert in Albany, New York, who has written articles about Internet defamation, said he agrees with the view that Judge Richman's decision is beyond the scope of Congress's intent. He also noted that Judge Richman's decision, if it is upheld and adopted by other courts, could pose mischief.

      Suppose, he said, the author of a libel posts it initially in an obscure corner of the Internet. Not much harm is done to the victim. But then suppose, too, that another person takes up the libel and re-posts it in hundreds or even thousands of news groups, causing vast damage to the victim. "The re-poster is the one responsible for more damages, and he can walk away," said Miranda.

      Other lawyers said that they agreed with the court's ruling and its effect of increasing the level of debate and freedom in Internet discourse.

      Mark Goldowitz, Rosenthal's attorney and the director of the California Anti-SLAPP Project, a public-interest law firm in Oakland, California, that fights lawsuits -- often called SLAPPs brought by corporations or individuals against defendants who oppose them on public issues, said that Judge Richman read section 230 correctly.

      "I think the decision is important because it extends the sphere of freedom of speech on the Internet beyond what is available in the hard-copy world," he said. "Congress said we don't want to squelch the Net and we are going to allow greater freedom on the Net than in the non-Internet community."

      Asked why it might make sense for the law to punish a libel re-publisher on terra firma but grant him immunity in cyberspace, Goldowitz pointed to the increased and low-cost ability of victims of defamation to use the Internet to quickly refute attacks. "That's why this rule makes sense," he said. "The whole premise of the Net is that everyone has the opportunity to put out ideas. If you disagree with someone you can just set up a news group or set up a Web site."

      In the California libel case, according to legal papers, attorney Grell and two doctors who investigate purported health fraud, Stephen J. Barrett, M.D., of Pennsylvania and Terry Polevoy, M.D., of Waterloo, Canada, charged that several defendants involved in the alternative medicine movement published messages on the Internet and in other channels that defamed them.

      One message, allegedly written by a defendant, Tim Bolen, stated, among other things, that Dr. Polevoy had stalked a Canadian radio producer of alternative medical programs. In August of last year, according to the complaint, Ms. Rosenthal re-posted the Bolen message to one or more news groups. Dr. Barrett contacted her and told her that the Bolen message contained false and defamatory information about Dr. Polevoy, and threatened suit. Instead of withdrawing themessage, however, Rosenthal posted messages about Dr. Barrett's threat accompanied by an additional re-posting of the Bolen statement, according to the complaint.

      Judge Richman's ruling dismissed the charges against Rosenthal. The case against the other defendants is pending. In addition, Dr. Barrett said in an interview that he has filed libel cases in Illinois and Canada charging additional defendants with re-posting on the Internet defamatory statements about him.

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