| Ilena Rose 2006-10-15, 4:28 pm |
| http://www.law.com/jsp/law/LawArtic...d=1157462050900
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Calif. High Court Cold to Liability in Online Speech
Mike McKee
The Recorder
09-06-2006
Oakland, Calif., attorney Christopher Grell's belief that certain
Internet speech shouldn't be immune from liability was bombing Tuesday
during oral arguments in the state Supreme Court.
But the coup de grace came when Justice Ming Chin followed up Grell's
presentation by immediately telling one of the opposing lawyers how
surprised he was by Grell's "startling lack of legal authority."
That statement apparently summed all seven justices' thoughts about
Grell's argument, and effectively signaled that the court doesn’t
intend to make untold numbers of Internet users liable for every
allegedly defamatory posting on the Web.
Chin even pointed out that Grell's opponents -- Oakland attorney Mark
Goldowitz and Ann Brick, of the American Civil Liberties Union of
Northern California -- had "plenty" of legal authority on their side.
Goldowitz represents Ilena Rosenthal, a women's health advocate
accused of posting an allegedly defamatory opinion piece with two
online newsgroups in August 2000. The editorial by co-defendant Tim
Bolen attacked retired Pennsylvania psychiatrist Stephen Barrett and
Canadian doctor Terry Polevoy for their stance against alternative
medicines.
The article accused the two men of using false information and
intimidating tactics, and said Barrett had stalked a woman who hosted
a Canadian television show about untraditional therapies.
Alameda County Superior Court Judge James Richman threw the two men's
libel suit out in 2001, but San Francisco's 1st District Court of
Appeal reinstated Polevoy's claims in 2004. The appeal court held that
§230 of the federal Communications Decency Act didn't immunize
Rosenthal.
An e-mail from Barrett threatening to sue Rosenthal, the 1st District
ruled, put her on notice that she could be held liable for
republishing Bolen's letter.
Dozens of amici curiae -- most of them online companies such as
Amazon.com and Earthlink Inc. -- joined Rosenthal in arguing that the
appeal court's ruling could chill free speech.
"If, simply by receiving 'notice,' service providers were potentially
liable for the unimaginable volume of third-party content that
constantly flows through their services," the companies' lawyer, Samir
Jain, wrote, "they would have little choice but to automatically and
immediately take down and block third-party content in response to
virtually all complaints."
Jain, a partner in Washington, D.C.'s Wilmer Cutler Pickering Hale &
Dorr, argued that notice-based liability would "unleash a 'heckler's
veto' that would suppress swaths of entirely legitimate content."
On Tuesday, the California Supreme Court seemed to agree and also
stressed the fact that the 1st District ruling differed from all
others around the country.
The justices noted that most courts -- even two other appellate courts
in California -- had agreed with Zeran v. America Online Inc., 129
F.3d 327. That 1997 seminal ruling by the Virginia-based 4th U.S.
Circuit Court of Appeals said Internet users -- unlike publishers --
aren't liable for posting online content.
"The court of appeal ruling here," Justice Joyce Kennard said, "seems
to stand completely on its own. Zeran has been followed widely."
A few justices also seemed concerned that a California Supreme Court
ruling contrary to Zeran and its progeny could result in
forum-shopping, with Internet users trying to remove suits to the
federal courts.
No one, Justice Carol Corrigan said, would want to be found liable in
California. "I think there is that danger, yes," Goldowitz replied.
Corrigan also stepped in when Grell tried to argue that the Internet
should be held to the same liability standards that apply to
newspapers and magazines. "Isn't the whole point here that the
Internet is different?" Corrigan asked.
Grell was asked several times to point to legal authority that would
support his case, but more often responded by arguing public policy
reasons that immunity shouldn't apply to postings by third-party
users.
Congress had intended to contain allegedly defamatory actions, he
said. "To grant absolute immunity would basically allow Pandora's box
to remain open,” he added. Soon thereafter, Chin slammed Grell with
his comment about a "startling lack of legal authority."
A ruling in Barrett v. Rosenthal, S122953, is due within 90 days.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Polevoy's publicists are continuing to post false information about
this case ...
There is one factual error in this article ... it was Polevoy ... not
losing plaintiff, Stephen Barrett, who harassed Ms McPhee and her
employers leading to her losing her popular radio show. More details
below:
www.BreastImplantAwareness.org/QuackbustersVsIlena.htm
www.BreastImplantAwareness.org/Polevoy.htm
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