California Libel Opinion Upholds Greater Protection of Internet Speech Jahna Berry
The Recorder
August 2, 2001 Justices of the California Court of Appeal may have to sort out an Alameda County Superior Court judge's groundbreaking ruling that gives sweeping libel protection to Internet users.

Last week, Judge James Richman dismissed part of a lawsuit filed by two physicians who claimed that a woman re-posted a libelous article that accused one of the doctors of stalking a Canadian journalist.

"[A]s a user of an interactive computer service, that is, a newsgroup, [the defendant] is not the publisher or speaker of [the] piece. Thus, she cannot be civilly liable for posting it on the Internet. She is immune," wrote Richman.

Internet free speech watchdogs hailed Richman's 27-page decision, which interprets key provisions of the Communications Decency Act. "The judge did not create this out of thin air," said Lee Tien, an attorney with the Electronic Frontier Foundation. "The statute specifically does give speech in interactive computer services more protection."

The court order was made against the backdrop of a bitter Internet public relations feud between alternative medicine advocates and two doctors who have campaigned against questionable medical treatments.

Barrett v. Clark, 833021-5, was filed by Stephen Barrett and Terry Polevoy, who run a network of anti-health scam Web sites and organizations, including "Quackwatch." Over time animosity boiled over between the doctors and the defendants, including Ilena Rosenthal, who runs support groups for women that were harmed by breast implants.

Among several allegations in the complaint, the physicians allege that Rosenthal posted a libelous article written by co-defendant Tim Bolen. Bolen wrote that Quackbusters intimidated Canadian officials into cutting a radio show about alternative medicine. It also claims that Polevoy stalked the journalist who organized it.

Although Richman's order tossed the Internet re-posting claim, several other defendants, including Bolen, still face libel allegations.

The doctors' attorney says the ruling gives Internet users more freedom than they would have if the words appeared in print.

"If someone sent a letter that was libelous you would not be immune," said Oakland, Calif., attorney Christopher Grell. Grell, who was also a co-plaintiff in the suit, says he is active in groups that monitor dietary supplement safety.

Someone could put libelous information on the Internet and duck court action by having someone else author it, Grell said.

"It was a ruling that Congress would have never imagined," added Grell, who plans to appeal.

Lawmakers intended that ordinary users like Rosenthal would be protected, said her attorney.

"Even if it's defamation," said Oakland lawyer Mark Goldowitz, "she is protected."

Goldowitz, who is director of the California Anti-SLAPP Project, argued that Richman should toss the libel allegation against Rosenthal because it constitutes a Strategic Lawsuit Against Public Participation.

In the fast-moving realm of Internet law, trial court rulings have become increasingly important, said Tien.

"Lower court decisions that people would normally not pay attention to, they make a difference," he said. A Pennsylvania district court judge's ruling in the Internet domain dispute, Zippo Manufacturing Co. v. Zippo Dot Com, is frequently cited in legal briefs, he said.

"Courts are less familiar with the Internet. They want to see what their brothers and sisters have done, even with things where they would have trusted their own judgment," said Tien.

Indeed, Goldowitz noted, Richman's carefully reasoned opinion -- which is much longer than the usually pithy trial court orders -- "provides a road map for the Court of Appeal."

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