The California Supreme Court ruled unanimously this week in Barrett v. Rosenthal that internet-service providers (ISPs) and Internet users who republish defamatory content with notice of its defamatory character cannot be held liable for that republication under a theory of common law “distributor” liability. The Court relied on Section 230 of the federal Communications Decency Act, which immunizes ISPs and Internet users from liability for republication of defamatory content.
Under common law, distributors such as newspaper vendors could be held liable for defamation when they had notice of defamatory statements in their publications, but the original publisher could be held liable even without notice. This traditional distinction of liability between “distributors” and “publishers” was eliminated in the context of the Internet by Section 230 of the Communications Decency Act of 1996 (CDA). Section 230 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” and “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Courts around the country have interpreted Section 230 of the CDA to grant a blanket immunity to any cause of action that would make ISPs liable for torts such as defamation committed by the ISP’s users when that information originated with the ISP user (although there is a split of authority on whether tort claims such as invasion of privacy are also preempted by Section 230).
The First District Court of Appeal initially held in Barrett v. Rosenthal held that California common law “distributor” liability remained despite the blanket immunity in the CDA, allowing liability for ISPs and Internet users if they republished statements with notice of the defamatory nature of such statements. The Supreme Court reversed that Court of Appeal decision. Acknowledging that “blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications,” the Supreme Court nonetheless upheld that blanket immunity on the grounds that Congress has comprehensively immunized republication by individual Internet users in Section 230 of the CDA. The Court noted that “[t]he statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended.” While plaintiffs are free under Section 203 to pursue the originator of a defamatory Internet publication, the Court held that “[a]ny further expansion of liability must await Congressional action.”