Another online libel and ISP liability case

The Californian Supreme Court has ruled on the case of Barrett v Rosenthal. The case was brought by two doctors who operated a website that exposed health frauds. The defendant is one Ilena Rosenthal, who hosts an online forum and discussion group. The two plaintiffs alleged that Rosenthal and others committed libel by maliciously distributing defamatory statements in emails and forum posts. The defendant claimed that the posts were protected by freedom of speech, but also that some of these boards are part of the "Wild West" of the Internet, where it is impossible to exercise any editorial or policing.

One of the important parts of the ruling is that it revisits the famous ISP liability case Zeran v AOL. Distributors and ISPs have for long been awarded some form of immunity from liability for libel and defamation, mostly based on the fact that the sheer volume of information that passes through servers makes all form of editorial oversight impossible.

What is novel about this case is that Rosenthal is not an ISP in the traditional sense, but an individual who administers a forum. The question then is whether individuals are to be awarded immunity. Rosenthal won the case in first instance and in appeal. The Court of Appeals went as far as to consider that there is no operational difference between individuals and ISPs. The California Supreme Court has rejected this line of thought by making a clear distinction between individuals and large enterprises. They argue:

"Individual Internet “users” like Rosenthal, however, are situated differently from institutional service providers with regard to some of the principal policy considerations discussed by the Zeran court and reflected in the Congressional Record. In particular, individuals do not face the massive volume of third-party postings that providers encounter. Self-regulation is a far less challenging enterprise for them. Furthermore, service providers, no matter how active or passive a role they take in screening the content posted by users of their services, typically bear less responsibility for that content than do the users. Users are more likely than service providers to actively engage in malicious propagation of defamatory or other offensive material."

However, while there seems to be a distinction between individuals and ISPs, the California Supreme Court had to conclude that the language in the legilegislation does not make a distinction, and therefore even idnividuals would be awarded blanket immunity. They however recommend the plaintiffs should not pursue the intermediary, but to sue the publisher of the defamatory Internet publication.