From
The KDDK Advantage - February/March 2007
Who’s to Blame for Blogs?
Plaintiffs
seeking to sue for internet defamation must search
a little harder for the proper defendant after a recent
Supreme Court case. In Barrett et al. v. Rosenthal,
the Supreme Court of California decided that plaintiffs
who claim they were defamed in an Internet posting
may only seek recovery from the original source of
the statement and that Internet providers are not liable
for defamatory content that they display or post. Also,
websites that publish defamatory statements made by
others cannot be sued for libel.
The subject of the case was an email Illena Rosenthal posted – but did not write
– to two newsgroups. The email made accusations about two doctors that operated
websites aimed at criticizing alternative medicine techniques and exposing medical
frauds. It said one doctor had stalked a radio producer and that both doctors
engaged in criminal conduct and were “hired guns” for vested interests.
The Court
analyzed Congress’ Communications Decency Act of 1996 (“Act”) which 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.” Because the Court found
that “user” in this Act refers simply
to anyone using an interactive computer service, it held that any approach
other than protecting users would “tend to chill the
free exercise of Internet expression,
and could frustrate the goal of providing an incentive for self regulation.”
The Court also noted that blanket
immunity for those who intentionally redistribute defamatory
statements
on the Internet has disturbing implications, but that
the Act exempts intermediaries from liability in order “… to protect online
freedom
of expression and to encourage self-regulation, as Congress intended.”
Now,
plaintiffs complaining of defamatory content on blogs
or other internet postings face difficult challenges,
such as identifying the originator of the
defamatory statement. Since not all internet postings require users to be identified,
some plaintiffs may be left without recourse.
An Indiana court has yet to address
this issue, but the few states that have addressed
the issue showed a trend toward favoring website hosts
in the interest
of free expression.
Evansville native Crystal
M. Spivey practices in the areas of litigation and trial
services;
insurance subrogation
and defense; and bankruptcy, collections & creditors
rights. Contact Crystal at cwildeman@kddk.com or 812-423-3183.
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