Webloggin » Web Publishers Win In California Supreme Court Decision

My Dissenting Opinion On Those Who Dissent

I think Michelle Malkin gets it wrong in her article on the California Supreme Court ruling that providers of websites that allow interactive content (blogs, discussion boards) are immune from liability when someone reposts defamatory content to the site.

Michelle argues that the ruling is a negative by reasoning as follows:

Many of my friends and colleagues in the blogosphere see the decision as a triumph for Internet free speech. See Glenn Reynolds, Danny Glover, and Justin Levine at Patterico’s, for a sample of opinion.

Perhaps because I have a foot in both the MSM and blog worlds and have been the target of defamation, I don’t see the ruling in quite the same positive light.

Why should online speech be held to a different standard than other speech?

If Barrett v. Rosenthal is applied to bloggers, as many assume it will be, if I re-publish a defamatory statement on this blog, I am immune from liability for libel.

But if I re-publish the exact same statement in my syndicated column published in print, I’m liable.

That absurd result is what the ruling seems to suggest and what many bloggers hope it suggests.

But aren’t bloggers the ones arguing that we should be treated like MSM journalists? Isn’t that what the Apple vs. bloggers case was all about? Remember? Seems to me that some bloggers want to enjoy the benefits of MSM status (fighting for the same coverage as traditional journalists under shield laws, as in the Apple case), but avoid the consequences (getting sued if they re-publish defamatory material online).

Unfortunately there are a couple of problems with this reasoning. It is hard for Michelle not to get personal here because she has been the target of many defamatory attacks by scum bags that hide behind the shield of the Internet. But we should be satisfied that someone can be held liable in these cases when they are identified. The original creator of the defamatory material and everyone who participates in that creation is liable. This did not change with the recent California ruling.

the Zeran court reasoned that Congress viewed “[t]he imposition of tort liability on service providers for the communications of others” as “simply another form of intrusive government regulation of speech.” (Zeran, supra, 129 F.3d at p. 330.) While original posters of defamatory speech do not escape accountability, Congress “made a policy choice . . . not to deter harmful online speech [by] imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.” (Id. at pp. 330- 331.) This policy reflects a concern that if service providers faced tort liability for republished messages on the Internet, they “might choose to severely restrict the number and type of messages posted.” (Id. at p. 331.)

If Michelle or anyone else believes that a person who reposted defamatory material is liable then they must prove that case by taking the post in whole and not just the reprinted pieces. A case for participation could likely be made if the person who reprints the defamatory material adds anything to it to perpetuate the defamation.

This second part of the argument that Michelle makes is more nuanced but falls apart when you read the ruling.

If Barrett v. Rosenthal is applied to bloggers, as many assume it will be, if I re-publish a defamatory statement on this blog, I am immune from liability for libel.

But if I re-publish the exact same statement in my syndicated column published in print, I’m liable.

The court considered this aspect and clearly stated that these entities are treated differently because of the burdens associated with policing the massive amount of postings allowed on interactive websites. These laws were passed with free speech in mind.

Subjecting service providers to notice liability would defeat “the dual purposes” of section 230, by encouraging providers to restrict speech and abstain from self-regulation. (Zeran, supra, 129 F.3d at p. 333.) A provider would be at risk for liability each time it received notice of a potentially defamatory statement in any Internet message, requiring an investigation of the circumstances, a legal judgment about the defamatory character of the information, and an editorial decision on whether to continue the publication. “Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context.”

There are many nuanced distinctions here and it boils down to the role of the person distributing the material; a role that changes on a circumstantial basis. In the case of a published column we can clearly see that the print form does not suffer that burden and this is why they are treated differently.

Even in the case of Michelle’s column however she may only be held liable if it can be proved that she or the publisher knew or had reason to know of a publication’s defamatory content. Thus it is not automatic and there is still the burden of proof. In this case she is treated as a publisher of content whereas websites that provide interactive content are treated as distributors when they republish someone else’s material.

Finally Michelle is treating all bloggers as if they want to be treated like the MSM. This simply isn’t the case. Many bloggers just want to have an online diary or a place to speak their mind. They do not have the time, effort or resources necessary to be treated like the MSM nor do most of them want to be. For them this is an avenue of free speech and they are subject to the same laws as anyone else. You make a defamatory statement with your identity attached to it and you open yourself up to a lawsuit.

To assume that all bloggers want to be included in the group of those who want to be treated like MSM journalists incorrectly puts blogs in a singular category. It is almost like saying that only MSM journalists should be allowed to use blogs.

To be clear however, Michelle does provide the context “some bloggers” when she argues that some want to enjoy the benefits of the MSM without the liability. But there is a line of delineation here. Yes, many bloggers want to be treated like the MSM. Yet they are not part of the MSM because they are not backed by a company and syndicated like Michelle. Thus they are not part of the MSM by definition. So it seems to me that Michelle has a problem with being held to a higher standard herself while others who are not in the MSM are not; at least in appearance.

In any case the law is clear here on why the entities are treated differently and it is clearly a win for bloggers and service providers in my opinion.

Others Bloggin on this Subject: Wizbang, Center For Citizen Media

Note : This article is not to be construed as legal advice. I am not a lawyer and provide this material simply as an opinion.