Barrett v. Rosenthal [1]

The plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated websites devoted to exposing health frauds. Ilena Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Barrett and Polevoy claimed that Rosenthal and her co-defendants committed libel by distributing defamatory statements in emails and Internet postings to various forums. Specifically, they alleged that Rosenthal republished two Usenet newsgroup messages "accusing Dr. Polevoy of stalking women and urging 'health activists . . . from around the world' to file complaints to government officials, media organizations, and regulatory agencies." They also alleged that Rosenthal posted a message to a newsgroup stating that Quackwatch, the organization associated with Barrett's website, "appears to be a power-hungry, miguided bunch of pseudoscientific socialistic bigots," that it was "an industry funded organization," and that it was being sued by many doctors and health organizations. They claimed also that Rosenthal posted another message to a newsgroup referring to Barrett and Polevoy as "quacks."

Rosenthal moved to strike the plaintiffs' complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16 [2]). She claimed that her statements were protected speech, and argued that the plaintiffs could not establish a probability of success on the merits of their lawsuit because she was immune from liability under CDA 230 [3] (which insulates a "provider or user of an interactive computer service" from being held liable as the publisher or speaker of "any information provided by another information content provider"). She also argued that her statements were non-actionable statements of opinion.

The district court granted the motion, finding that Rosenthal's statements concerned an issue of public interest within the scope of the anti-SLAPP statute, and that all but one of the alleged defamatory statements were non-actionable statements of opinion. The only remaining statement appeared in an article that Rosenthal received via e-mail from her co-defendant, Tim Bolen. This article accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of the article on two newsgroups devoted to alternative health issues, not on her own discussion group. The trial court held that Rosenthal's republication of Bolen's article was protected by CDA 230.

The California Court of Appeal reversed the trial court, insofar as its decision applied to the statement about Dr. Polevoy's alleged stalking. It held that CDA 230 did not protect Rosenthal from liability as a "distributor" of the defamatory material under the common law of defamation.

In November 2006, the California Supreme Court reversed the Court of Appeal, holding that CDA 230 prohibits "distributor" liability for Internet publications. It also held that CDA 230 protects individual users of interactive computer services, and that it protects "active" republication as well as "passive" republication of others' statements. On the "distributor" issue, the California Supreme Court followed Zeran v. Amercia Online, 129 F.3d 327 (4th Cir. 1997) [4], which also refused to draw a distinction between a "distributor" and a "publisher' for purposes of CDA 230. Both cases are widely regarded as important decisions standing for the proposition that, in the words of Eric Goldman [5], "no one is liable for other people's content online -- period (except for claims not covered under the statute -- IP, federal criminal law, ECPA)."

It is unclear from the docket sheets what the status of the lawsuit is with respect to the remaining defendants, but there has been no action in the trial court since 2004.

Update:

Tim Bolen reports [6] that Judge Stephen Dombrink of California Superior Court, Alameda County, dismissed the case against the remaining defendants in March 2009.