Fw: An Oakland judge makes a precedent-setting ruling in an Internet libel case

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From: " Ilena Rose " <ilena@...>

Sent: Thursday, September 06, 2001 9:49 AM

Subject: An Oakland judge makes a precedent-setting ruling in an Internet

libel case

>

> From eastbayexpress.com

>

> Originally published by East Bay Express September 5, 2001

>

>

> { http://www.eastbayexpress.com/issues/2001-09-05/cityside.html'>http://www.eastbayexpress.com/issues/2001-09-05/cityside.html }

>

> War of the Words

>

> An Oakland judge makes a precedent-setting ruling in an Internet libel

case

>

> By Kara Platoni

>

> Let's say there's this guy who really gets under your skin; let's call him

> Mr. . Let's say you dislike Mr. 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. picks up the paper? Most likely, both you and the paper will be

> slapped with a libel suit, and most likely, Mr. 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. still sue

> both of you? An Oakland judge's answer might surprise you.

>

> Last month, California Supreme Court judge 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 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. , 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. 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. 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 Quackbusters.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 , 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). 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 's

> supporters escalated after 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 and Bolen,

> Rosenthal was included as a defendant as well. In fact, because the

> plaintiffs' attorneys were unable to track down either 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 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 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. , 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. "

>

>

> { http://www.eastbayexpress.com/issues/2001-09-05/cityside.html'>http://www.eastbayexpress.com/issues/2001-09-05/cityside.html }

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