Fw: How Is Libel Different in Cyberspace? ~ NY Times

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From: " ilena rose " <ilena@...>

Sent: Thursday, August 09, 2001 11:25 PM

Subject: How Is Libel Different in Cyberspace? ~ NY Times

>

http://www.nytimes.com/2001/08/09/technology/10CYBERLAW.html?searchpv=day01

>

>

> AUG 09, 2001

>

> How Is Libel Different in Cyberspace?

>

> By CARL S. KAPLAN

>

> 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 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©(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. , 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.

>

> 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 & 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.

>

> 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, Rosenberg'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, 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. Rosenberg 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 the message, 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.

>

>

>