The Law of Defamation and the Internet

Update 1

Barrett v Clark (Alameda County Superior Court, California, 25 July 2001)

American decision concerning the application of s 230(c) of the Communications Decency Act, 47 USC (USA)

On 25 July 2001, Judge Richman of the Alameda County Superior Court, California, delivered judgment in Barrett v Clark. A copy of the decision is available by following the links from this site.

The plaintiffs complained of various newsgroup messages posted by the defendants. The defendants successfully applied to strike-out the proceeding, on various grounds.

The most notable aspect of the decision is Judge Richman’s interpretation of s 230(c) of the Communications Decency Act (‘CDA’), which is discussed in The Law of Defamation and the Internet, paras 27.50–27.74. Section 230(c)(1) provides:

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.

One of the newsgroup postings complained of by the plaintiffs had been written by one of the defendants, Bolen, and ‘reposted’ on the Internet by another of the defendants, Rosenthal. Judge Richman held that s 230(c) protected Rosenthal from liability for the reposted material. His Honour said:

It is undisputed that Rosenthal did not ‘create’ or ‘develop’ the information in defendant Bolen’s piece. Thus, as a user of an interactive computer service, that is, a newsgroup, Rosenthal is not the publisher or speaker of Bolen’s piece. Thus, she cannot be civilly liable for posting it on the Internet. She is immune.

Judge Richman’s interpretation of s 230(c), if it survives appellate scrutiny, substantially expands the scope of the immunity conferred by the CDA. It appears to offer broad protection from liability in the United States to persons who forward or republish material created by others, and would presumably also protect persons who create links to, or frame, others’ defamatory material on their websites. In these respects, the American position contrasts sharply with that in the United Kingdom and Australia: see The Law of Defamation and the Internet, paras 5.23–5.28 (repetition and republication) and paras 5.29–5.39 (linking and framing).

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