Section 230 of the Communications Decency Act Provides Broad Immunity for Internet Publishers

Case: Barrett v. Rosenthal, California Supreme Court (No. S122953 11/20/06)

The One Sentence Summary: Section 230 of the Communications Decency Act provides broad immunity for all publishers and computer users who publish information provided by other computer users.


What They Were Fighting About: The Communications Decency Act of 1996 ("CDA") provides in 47 U.S.C. § 230(c)(1) 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." 47 U.S.C. § 230(e)(3) provides "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." Plaintiffs alleged that defendants had committed libel by defaming them in Internet postings. Only one posting was at issue on appeal, the reposting of an article accusing plaintiff Polevoy of stalking a Canadian radio producer. Defendant Rosenthal had posted a copy of an article alleging this after receiving it via e-mail from a co-defendant.

California Supreme Court Holdings:

• The California Supreme Court followed what it called the leading case on immunity under section 230, Zeran v. America Online, Inc. 129 F.3d 327 (4th Cir. 1997).
• The Supreme Court reject the Court of Appeals' analysis that section 230 retained the common law distinction between publishers and distributors and that distributors were not immunized under section 230. Rather, the California Supreme Court agreed with the Zeran court that distributors were a type of publisher and that the broad grant of immunity to publishers necessarily included distributors. The court noted that on the Internet, it would be difficult to determine what constituted a distribution versus an original publication.
• After a review of the legislative history, the court concluded that Congress intended to protect and immunize even publishers who took an active role in republishing third party content and that it would be inconsistent to hold that distributors who might have taken a lesser role would not be protected from liability.
• The court agreed with the analysis in Zeran that providing for notice-based liability of a distributor would have negative effects including the chilling of speech on the Internet. Moreover, noticed-based liability would provide an incentive not to monitor an Internet service because it could potentially cover notice of something that could create liability. Moreover, notice-based liability would allow plaintiffs to create liability by sending ceaseless notices of claims.
• The court also noted that if it were to allow notice-based liability it would provide plaintiffs with an incentive for forum shopping to avoid jurisdictions which have held that the immunity under section 230 is broad.
• The court concluded that the immunity granted to "users" of computer services was broad and did not support a distinction between active and passive users.
• Plaintiffs' libel claims could not be asserted due to the immunity granted under section 230 of the CDA.