Patterico's Pontifications


California Supreme Court: Web Publishers Not Liable for Republishing Defamatory Statements by Third Parties

Filed under: Civil Liberties,Court Decisions,General — Patterico @ 9:09 pm

The California Supreme Court held today that “plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.” (H/t Howard.) In other words, Web publishers currently have absolute immunity for the republication of allegedly defamatory statements originally made by others.

The implications of this ruling are significant, and are, in my view, a net positive for free speech in this country.

I await input from Justin Levine.

[Comment/Input from Justin Levine – not Patterico]:

As you might expect, I’m delighted with the decision. Broad immunities from defamation claims are an absolute necessity if you wish to have a robust Internet culture.

Sometimes legal compromises are constrained by the nature of the technology before us. Either you will embrace true Internet freedoms and all the wondrous possibilities it has brought in the last decade, or you will encourage a world where what you can publish will ultimately be dictated by how much financial and legal resources your subject has access to in order to intimidate you into silence. The nature of the Internet makes this a binary “either/or” proposition. On or off. 1 or 0. Anything else is simply splitting the baby I’m afraid.

Incidentally, I have no problem with

Justice Moreno’s concurrence in the opinion [pg. 35]. It is not a “compromise”, but merely an attempt to define who is the true originator of posted messages.

[As some of you may know, I also think we face a similar crossroads of Internet freedoms when it comes to copyright law, but that is a discussion for other posts.]

Those who worry that today’s decision could have “troubling consequences” regarding libel on the Internet fail to see the bigger picture here. One of the primary rationales for defamation laws in the first place was predicated on the assumption that the target of the libel would not have access to media or modes of communication to help correct the misinformation. The Internet is causing that rationale to rapidly collapse in on itself. In a world where everyone has access to the same megaphone, the sensible course is to let all messages freely compete. I am confident that the truth will win out more often than not. And in the end, those who knowingly defame others will ultimately find their reputations trashed far more than their targets.

That’s how I see it.

A few final post-scripts: One commenter tried to take me to task simply for being the messenger that a particular defamation lawsuit would likely be tossed out of court due to Internet immunities under the Communciations Decency Act. She can continue to voice her objections, but I’m doubling-down on my bet now – the lawsuit will certainly be tossed. [And if you’d like to read a free-for-all libel-palooza comment section, feel free to peruse at your leisure. Just don’t take anything anyone says there seriously. I know I don’t.  😉 ] 

[For those legal geeks reading this who really like to get into nitty-gritty details of case law]: Interesting to note that I was skeptical that the Court would go as far as it did when I composed the Open Source Legal Motion

• Would the Communications Decency Act provide any defense in this instance (given the fact that some of the statements posted on Defendant’s website are merely third party e-mails that were republished on the site)? My first inclination was that I figured it was a bit of a stretch to apply this law – but I’d love to hear any of your own arguments on the matter. (One aspect to ponder – Do you think the reasoning in the Wilbanks case that I cite in the motion would somehow call for a broader reading of the statute? Has the “interactivity” of the Internet somehow expanded with the rise of blogs? Blogs were quite rare and perhaps unforeseen when the CDA was first passed. Do you think that might change the analysis in any way? ) See the EFF’s page on this subject here and let me know what you think.

I had a few decent exchanges with some people on this debate regarding just how far libel immunity would go on the Internet. In the end, I left it out of my motion because it was already too long and I felt I could prevail on more traditional forms of libel defense. However, I still kept it in the back of my mind as a type of legal “Hail Mary” pass to be used if needed. Good to know that somebody else made that pass and connected with it today.

I may have to gear up for another Open Source Legal Motion in the near future with one of my clients. Details to follow…

[End of rambling comments from Justin Levine – who is not Patterico]

12 Responses to “California Supreme Court: Web Publishers Not Liable for Republishing Defamatory Statements by Third Parties”

  1. In other words, Web publishers currently have absolute immunity for the republication of allegedly defamatory statements originally made by others.

    Wow, not even distributor liability. So long as the website then sources its iraqi stringer, you’ll have to sue an iraqi if its a lie.

    actus (10527e)

  2. Hmmm … how is this different from the existing Federal court interpretation? I thought the issues here were already decided.

    Kevin Murphy (0b2493)

  3. Good question Kevin. This decision is explicitly broader than what the Federal Courts have tackled thus far.

    To simplify by way of example [using as a hypothetical]:

    Hypothetical # 1: Let’s say that your next post on the comments section to this site suggests that Justin Levine rapes 8-year-olds, got drunk in Malibu and proclaimed Episcopalians the cause of all the wars in the world, and likes the new Lindsey Lohan album.

    The Federal Courts have held that under the CDA, Patrick (a.k.a. Patterico) could not be sued for anything that you post in this comment section – even if he may occasionally moderate, edit and/or delete comments of some posters. That has been the standard interpretation of the statute.

    However, this still left some questions open.

    Hypothetical # 2: Let’s say that instead of posting these defamatory comments on your own in the comments section here, you instead sent them personally to Patterico via his private e-mail. Let’s then say that Patterico then copied your e-mail and pasted the contents on to his site in order to spur continued debate about his controversial guest blogger. Same practical result (Your comments get posted to But would Patterico still be immune under Hypothetical # 2 since he had more of an “active” role in the publishing of it? That question was still unclear in many courts. But (if I’m reading it correctly) the California Supreme Court says that it makes no difference – Patterico would still have immunity.

    This ruling is thus the broadest interpretation of the CDA yet. Far broader than any other court has found (at least explicitly).

    Hope that helps.

    Justin Levine (716d06)

  4. […] A wise quote from a wise decision: We reject the argument that the difficulty of prevailing on a defamation claim mitigates the deterrent effect of potential liability. Defamation law is complex, requiring consideration of multiple factors. These include whether the statement at issue is true or false, factual or figurative, privileged or unpriviliged, whether the matter is of public or private concern, and whether the plaintiff is a public or private figure. (See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 529, 556 et seq., pp. 782, 814 et seq.) Any investigation of a potentially defamatory Internet posting is thus a daunting and expensive challenge. For that reason, we have observed that even when a defamation claim is “clearly nonmeritorious,” the threat of liability “ultimately chills the free exercise of expression.” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 268; see also Time, Inc. v. Hill (1967) 385 U.S. 374, 389.)  […]

    The Southern California Law Blog » Quote of the Month From The California Supreme Court [Re: Internet Libel] (d08cdf)

  5. Blogs Held to Lower Standards on Defamatory Speech…

    MSNBC runs the headline, “California court says bloggers can’t be sued.” Their quick summary:
    The California Supreme Court ruled Monday that bloggers and participants in Internet bulletin board groups cannot be sued for posting defam…

    Outside The Beltway | OTB (30d6b6)

  6. Justin–

    I’m pretty sure that Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) covers both cases. In that case a website operator published a defamatory email he had received, and then claimed protection under Section 230, and got it.

    Kevin Murphy (0b2493)

  7. Good point Kevin. Though a subtle distinction here is that the web publisher had advance knowledge that the statement in question was considered libellous by one of the parties before posting it. Even with such knowledge, the immunity stands. But you’re right that this case is a logical extension of Bartel. With the CA Supreme Court on board, now only the U.S. Supreme Court or Congress can change it.

    Justin Levine (9f37aa)

  8. I am confident that the truth will win out more often than not.

    I do not share this optimism. I think you exaggerate the impact of blogs.

    How many erroneous stories, reported on big media internet sites and corrected on blogs, have been corrected in the minds of the multitude? Few people question the MSM.

    Propaganda trumps truth in almost every case. The megaphones are not the same. Don’t mistake having a voice for being heard.

    Amphipolis (fb9e95)

  9. If the stories ONLY appear on the webistes of big media companies, then I would argue that blogs do a fine job or correcting errors “in the minds of the multitudes” as you state. It is only a problem when the errors are repeated in the traditional modes of information distribution (television, radio, hard print, etc.). But if the errors occur there, then they don’t have the libel immunity protections that we are talking about here, so it still isn’t a problem.

    Justin Levine (ee9fe2)

  10. California Supreme Court Watch: Websites NOT Liable for Libel in Third-Party Postings…

    In a victory for bloggers, newsgroup participants and other Web publishers, the California Supreme Court ruled Monday that individual Internet users cannot be held liable for republishing defamatory statements written by others….

    FullosseousFlap's Dental Blog (6ed3f8)

  11. Web Publishers Win In California Supreme Court Decision…

    I disagree with those who view the California ruling as a negative.


    Webloggin (a2d188)

  12. […] Naturally, this same concept will apply to your use of political photos as well. Want to post a photo of Clinton, Carter or Bush without paying for it? How do you justify that in light of your beliefs? Oh wait – You think that pictures of politicians are “news”, but that pictures of Paris Hilton somehow aren’t? Who gets to make the “news” vs. “entertainment” distinction in this day and age? How is that even remotely possible? What objective criteria are you using? Bloggers have made great strides in getting the legal culture to radically rethink defamation law in order to give our medium room to breathe. But quite tellingly, that same form of immunity from liability does not extend to copyright infringement.  5. For those who think that it should be unlawful to do what Perez is doing, do you not also think that it should be unlawful for the paparazzi to do what they do? This is no problem for me – I happen to think that both activities fall squarely under free speech. But I find it absolutely bizarre that somebody could actually hold the view that posting somebody else’s picture on their website without permission is a form of copyright infringement, but simultaneously thinking that taking the picture in the first place without permission is isn’t its own form of intellectual property infringement. For the person who is depicted in the photo – isn’t it a violation of their “publicity” rights? If not, don’t they deserve to have joint ownership of the copyright since they were responsible for the poses and other creative elements that went into shaping the photo?? If you think that both activities should be unlawful, fine. You have a frighteningly restrictive view of free speech in my opinion – but at least you are consistent. But for those who hold that Perez is infringing on people’s intellectual property, but that the paparazzi photographers somehow aren’t…What can I say? I really can’t debate a position that goes against what I consider to be common sense. So I’ll just skip the attempt at debate here and go right into the name calling: For those of you who think that what Perez is doing is wrong, but that paparazzi photographers still have a right to what they do – You are all silly and stupid people. If you wish to use the comments section of this post to call me names back, fine. It will simply confirm the depth of your silliness and stupidness in my eyes. So there!    On the other hand, maybe we can just say that we will never (ever) understand each other, and leave it on a civilized note. I’ll leave it up to you.  6. Perez is being a bit naïve in one regard – copyright cases usually do not allow you to be “judged by your peers”. The courts have taken away a defendant’s right to have their fair use arguments be decided by a jury. There is a simple reason for this, and (despite what the courts say) it is not because fair use is “a mixed question of law and fact”. It is because if juries actually got to decide copyright cases based on their gut notions of what is “fair use”, there would be a revolution in copyright law that the media conglomerates would not tolerate. Most copyright infringement cases that are filed today would be laughed out of court by the average Joe on the street. (“What’s that? Your documentary cameras incidentally caught 4 seconds on ‘The Simpsons’ on a television set in the background? You didn’t bother getting ‘clearance’ on the clip? And the plaintiff now claims that it is entitled to HOW much money?? Bwahhaaahaaa!!!!”)  As a result, judges are needed to take that power away from juries and decide such cases based on the carefully crafted “four factor test” of fair use (which again, can be easily twisted to justify any decision that you want).  7. “Why doesn’t Us or People just steal the photos and not pay for them? What’s the difference?” […]

    Patterico’s Pontifications » Perez Hilton - Hero of the Internet (421107)

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