November 20, 2006
Barrett v. Rosenthal--California Issues Terrific Defense-Favorable Interpretation of 47 USC 230
By Eric Goldman
Barrett v. Rosenthal, S122953 (Cal. Supreme Ct. Nov. 20, 2006)
The California Supreme Court issued a tremendous defense-favorable opinion today interpreting 47 USC 230. This opinion makes two principal points.
First, it defines the word "user" in the statute, interpreting it broadly to mean anyone connected online. Thus, presumptively, everyone online is eligible for 47 USC 230 immunization.
Second, it revisits the debate over whether 47 USC 230 preempted only publisher liability or if it also preempted distributor liability. This case casts its vote with the vast majority of other courts, holding that 47 USC 230 preempts both. In a particularly savvy portion of the opinion, it notes that the publisher/distributor distinction was "developed in the post-Gutenberg, pre-cyberspace world" but, in the cyberspace world, such distinctions just lead to unproductive categorization disputes.
Thus, the court rejects that a person who actively selects/republishes other people's content becomes an ICP of that content or otherwise loses eligibility for the immunization. Of course, at some point "active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source." In this case, the defendant forwarded content without modification, so the court doesn’t try to map out the boundaries. At the same time, the court notes that "many courts have reasoned that participation going no further than the traditional editorial functions of a publisher cannot deprive a defendant of section 230 immunity."
Collectively, these two points reinforce a broad reading of 47 USC 230 that no one is liable for other people’s content online--period (except for claims not covered under the statute--IP, federal criminal law, ECPA).
Other than with respect to these 2 broad points, I don’t think there’s a lot of value in dissecting the specifics of the court's reasoning, even though the opinion contains a lot of good statements and quotes that show that the judges got it. Overall, the court's opinion largely just echoes the Zeran case, repeatedly saying that Zeran got it right.
Although the courts’ analysis doesn’t break much new ground from Zeran, this case still cleans out the erroneous California precedent that had strayed from Zeran ("swimming against the jurisdictional tide," as the Supreme Court characterizes the lower court opinion) and provides strong precedential authority to other jurisdictions that they should stay the Zeran course. This opinion also should shut down several plaintiff attempts to avoid 47 USC 230. It should preserve the immunization's vitality and facilitate the free flow of content over the Internet. Today is a good day for the Internet.
My prediction: In September, after the Supreme Court oral arguments, I predicted: "I think the court will reverse the appellate court 7-0 in a fairly broad ruling that joins the Zeran line of cases. I expect the opinion to be written by either Justices Kennard or Corrigan." Bingo!
Posted by Eric at November 20, 2006 02:23 PM | Derivative Liability
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Nicely done! :-)
Posted by: greglas at November 20, 2006 09:09 PM
I hate to be contrarian, but I just wonder whether this (and Zeran) is the right ruling. The part that gives me pause is "information content provider." It seems to me that the intent was to protect users from liability where someone posted defamatory statements.
Here, however, the person selected and then republished the story - this is more than even "distribution" in the technical sense. It also seems strange that if a story is initially posted online, then it is immunized, but if a printed statement is quoted online, it is not (at least, that's how I read information content provider).
I suppose on the other hand the broad statutory language shouldn't ensnare unsuspecting users, and Congress should clarify. I tend to fall into the Cubby v. Compuserve camp - if you exert some sort of selection decisionmaking, then you have a duty (with notice) to take down defamatory statements.
Posted by: Michael Risch at November 21, 2006 11:00 AM
Not sure if you were trying to be trolly, but questioning 230 on this blog is a bold move! You're right that selecting/forwarding third party content is qualitatively different than just hosting someone else's content. However, selecting/forwarding content is exactly what "publishers" do, so I think it may be exactly what Congress was trying to insulate. Eric.
Posted by: Eric Goldman at November 21, 2006 07:05 PM
Just spurring discussion :)
I agree that the publishing is probably covered under the language as written, but I still wonder about congressional intent. The New York Times (and every other newspaper site) "publishes" stories from "other" information content providers (presumably, all news stories are submitted electronically). I find it hard to believe that these newspapers are shielded from all liability. That is the limit of the argument. Is the difference that they pay for it? Why should that matter? The statute certainly doesn't provide that exception.
Posted by: Michael Risch at November 21, 2006 07:46 PM
It is a little odd that the medium matters--if the NYT publishes content in physical space, it's liable; but the same content published in cyberspace doesn't. I'm not sure Congress meant the NYT outcome, but that may be the collateral consequence of the other salutary effects of 230. Eric.
Posted by: Eric Goldman at November 21, 2006 09:27 PM