About a month and a half ago, the California Supreme Court ruled on a case in such a way that I’m conflicted about. As anyone who’s read this blog knows, I’m very much an advocate of free speech and the First Amendment. The case is Barrett vs. Rosenthal, and it involves the question of whether the reposting on the Internet of material written by someone else can be defamatory. In brief, it involves the question of whether the reposting on Usenet of an opinion by someone else, as the defendant Ilena Rosenthal (a notorious “breast implant activist” and die-hard altie) did, can result in liability for defamation. The court ruled in favor of the defendant, meaning that Internet users and Internet service providers cannot be held liable for posting defamatory material written by someone else.

The ruling has disturbing implications in that it allows an easy means of defamation simply by reposting material written by someone else. Free Speaker over at a new blog Unchilled Speech has the lowdown of what this may mean to Internet users and to bloggers like myself. He also promises more commentary on such issues in the future.


  1. #1 James
    January 2, 2007

    It seems to me (without having any knowledge of US defamation law) that reposting should be defamation most of the time, but there should be some exceptions such as:
    1) An entity with no editorial control (such as an ISP) should have no liability
    2) Reposting a position while disputing / refuting it shouldn’t count.
    3) a blogger who doesn’t moderate comments shouldn’t be liable if they remove defamatory comment in a timely manner once they are aware of it.

    The trouble with defamation law is that is was primarily written for newspapers so its inevitable some of the differences inherent in the internet would warrant different treatment.

  2. #2 Stogoe
    January 2, 2007

    Feh. At this point, people calling you stupid or a Nazi on the IntarTubes means exactly dick.

    Maybe in twenty or thirty years when people’s reputations are actually damaged by anonymous cranks on teh tubes, we’ll need to revisit it, but right now, (I repeat myself, but) Feh.

  3. #3 Clayton
    January 3, 2007

    Free Speaker says, “this is MY BLOG, and I will always refuse to allow it to be used for harassment, stalking and abuse.”

    The problem is harassment and abuse are subjective, some consider mere criticism harassment and abuse. I could say “Orac you never got your degree, your a fake, bad person. blah. blah.” Presumably your readers however, would be intelligent enough to investigate wheter or not my claims were credible or whether I was talking out my ass…taking into consideration that this is the internet.

    The notion of stalking is patently absurd. One cannot follow someone as they cruise the internet. If however, they choose to stop cruising, and voice their opinion on a publicly available site for all to see, why would it suprise someone that they are subjecting themselves to potential criticism.

    ISP’s should never be held responsible for the actions of their users. This isn’t to say that they shouldn’t assist law enforcement. ISP simply provide access to a communications medium. It would be like sueing Ma Bell because someone crank called you and insulted you. Were they to threaten you, you then with the assistance of law enforcement and Ma Bell, look-up the call record then deal with the individual. Same with ISPs.

    We already have a problem with people indimidating hosts and ISP with claims of copyright infringement. Both regularly cancel accounts of users upon receiving a cease and desist. Note: This is done PRIOR to any investigation into the veracity of the claim. Church of Scientology does this all the time.

  4. #4 Jim Lippard
    January 3, 2007

    This all comes about from a provision of the Communications Decency Act that was intended to prevent ISPs from being held liable for defamation by their customers, but which was written so broadly that it covers all republication, including *knowing* republication of defamatory material by other individuals. It effectively creates a mechanism for anyone to defame anyone else, so long as you aren’t the one authoring the original defamation. Someone with sufficient resources, time, or creativity could potentially cause enormous damage by falsifying defamatory allegations through judgment-proof third parties.

    Law professor Susan Crawford wrote about this decision on her blog–she favors it–and I offered a critique.

    I agree with Clayton that the ISP exemption needs to be there.

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