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California Supreme Court Construes 'Section 230'

Federal statute immunizes individual “users” of interactive computer services
November 29, 2006

The legal problems and challenges associated with blogging are beginning to get attention, but only a few significant judicial decisions have provided useful guidance for bloggers and their individual or institutional legal counsel. Now, there’s a new one.

The California Supreme Court has just issued its much-anticipated opinion interpreting the immunity provision of the federal Communications Decency Act of 1996 (widely known as Section 230) as it applies to individual “users” of interactive computer services. Stephen J. Barrett et al., v. Ilena Rosenthal, California Supreme Court Case No. S122953, 2006 Cal. LEXIS 13529 (Cal. Nov. 20, 2006). In a thorough decision, the court discusses the history and purpose of Section 230 and then, relying on the statute’s plain language, concludes that the federal statute immunizes individual users of interactive computer services from liability for republishing information on the Internet. The court also concludes that there is no basis to distinguish between active and passive Internet use because “[b]y declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.” Id., at *56-57.

The decision is a clear victory for Internet speech. It provides an authoritative interpretation of Section 230 by California’s highest court that will encourage the free exercise of Internet expression. Although the court notes that “[t]he prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications,” the foundation of its decision is the unequivocal and compelling language in the federal statute. Id., at *57.

[B]y its terms [S]ection 230 exempts Internet intermediaries from defamation liability for republication… Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as “distributors,” nor does it expose “active users” to liability. Id.

Factual Background
The plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated web sites devoted to exposing health frauds. They sued Ilena Rosenthal, the sponsor of an Internet discussion group, claiming that she “committed libel by maliciously distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs’ character and competence and disparaging their efforts to combat fraud.” Id., at *5. The plaintiffs specifically alleged “that Rosenthal republished various messages even after Dr. Barrett warned her they contained false and defamatory information.” Id. Rosenthal claimed her postings were protected speech and that she was immune under Section 230.

The state circuit court concluded that Section 230 granted immunity to Rosenthal, but the Court of Appeals reversed that decision. Relying on the common law of defamation, the court of appeals held that Section 230 did not protect Rosenthal from liability as a distributor. That, fortunately, was not the final word.

Affirming Zeran v. America Online, Inc.
The California Supreme Court first reviewed the leading case interpreting Section 230, Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), and affirmed its basic principles. In Zeran, the plaintiff received harassing phone calls and messages after an unidentified person posted a message on an America Online, Inc. (AOL) bulletin board advertising T-shirts with offensive slogans referring to the Oklahoma City bombing. The message instructed purchasers to call the plaintiff’s home telephone number. The plaintiff notified AOL of the problem and the posting was eventually removed. However, he sued AOL for unreasonable delay in removing the messages, refusing to post retractions and failing to screen for similar postings.

The U.S. Court of Appeals for the Fourth Circuit interpreted Section 230 to confer immunity on AOL. Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, [Section] 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Id. at 330.

The Zeran court specifically concluded that the common law distinction between liability for authors and publishers, on the one hand, and mere distributors on the other hand “makes no difference for purposes of [S]ection 230 immunity.” Barrett, 2006 Cal. LEXIS 13529, at *14.

At common law, “primary publishers,” such as book, newspaper, or magazine publishers are liable for defamation on the same basis as authors. Book sellers, news vendors, or other “distributors,” however, may only be held liable if they knew or had reason to know of a publication’s defamatory content.
Id., at *13 (citations omitted). Under Section 230, however, the Zeran court concluded that distributors enjoy the same immunity as publishers because “they are nevertheless included in ‘the larger publisher category.’” Id, at *14. (quoting Zeran, 129 F.3d at 332).
-“[O]nce a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher. The computer service provider must decide whether to publish, edit, or withdraw the posting. In this respect, [the plaintiff] seeks to impose liability on AOL for assuming the role for which [Section] 230 specifically proscribes liability—the publisher role.”

Zeran, 129 F.3d at 332-33. Even in the face of a complaint, in other words, the federal statute gives Internet distributors/publishers immunity.

The Zeran court also recognized the unique nature of Internet speech, noting that “the sheer number of postings on interactive computer services would create an impossible burden in the Internet context” if a provider were at risk for liability each time it received notice of a potentially defamatory statement in any Internet message. Id.

The Barrett decision relies significantly on the framework of Zeran and affirms its interpretation of Section 230 beyond the context of a large Internet service provider—in Zeran, that was AOL. According to the California Supreme Court, the same principles enunciated in Zeran apply when “[S]ection 230 immunity [is] invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an ‘interactive computer service’ under the broad definition provided in the [Communications Decency Act].” 2006 Cal. LEXIS, at *9.

The great variety of Internet publications, and the different levels of content control that may be exercised by service providers and users, do not undermine the conclusion that Congress intended to create a blanket immunity from tort liability for online republication of third party content… We conclude the Zeran court accurately diagnosed the problems that would attend notice-based liability for service providers.
Id., at *44-45. The blanket immunity for Internet service providers, therefore, also clearly applies to individual Internet users.

Clarifying the Meaning of “User”
After affirming the principles established in Zeran, the court turned its focus to the meaning of “user” in Section 230, a term which remained undefined by the federal statute or the courts. The court noted that individual users 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 legislative history of Section 230. 2006 Cal. LEXIS 13529, at *46. Accordingly, the court posed the issue as “the scope of the term ‘user’ in [S]ection 230, and whether it matters if a user is engaged in active or passive conduct for purposes of the statutory immunity.” Id, at *47.

The term “user” is not defined in the Communications Decency Act. Based on the plain language of the statute, however, the Barrett court concluded that “Congress simply meant someone who uses an interactive computer service.” Id, at *48. The court then held that there is no distinction between immunity for active or passive users because it not clear “how a user who removes a posting may be deemed ‘passive’ while one who merely allows a posting to remain online is ‘active.’” Id., at *51.

All republications involve a “transformation” in some sense. A user who actively selects and posts material based on its content fits well within the traditional role of “publisher.” Congress has exempted that role from liability.

Id., at *55. The court concluded, “[b]y declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.” Id., at *56-57.

Consistent with Congressional intent, therefore, the plaintiffs’ sole remedy is against the original content provider. Indeed, there has been nothing in the judicial or legislative evaluations of Internet speech to suggest that the original content provider does not remain potentially liable for false and defamatory speech. In addition, it should be kept firmly in mind that Section 230 does not provide immunity from a lawsuit—only immunity, in most cases, from a successful lawsuit. Those who perceive themselves defamed by Internet speech no doubt will continue to name as defendants anyone connected with the speech. Finally, however reassuring and enlightening the California Supreme Court’s decision might be, it remains binding precedent only in California.

Significantly, the Barrett decision does not address the level of “active involvement in the creation” of an Internet posting that would expose a user to “liability as an original source.” Id., at *51. It was undisputed that Rosenthal did not make any changes to the article she republished on the Internet and, therefore, the Barrett court held that it “need not consider when that line is crossed.” Id.

The Barrett decision takes the next step in clarifying the immunity provisions of the Communications Decency Act by ensuring that individual users enjoy the same immunity from liability that is well-established for Internet service providers. With a thorough discussion of both the Zeran decision and the legislative history of Section 230, other state and federal courts facing questions about the applicability of the immunity provision will certainly rely on the Barrett decision.

For more information about Internet speech and media law issues, please contact Jennifer L. Peterson at 608-284-2649 or, or another member of the Godfrey & Kahn Media Law Team.

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