As a defamation attorney, I speak with dozens of people each month about false statements made about them on the Internet, and whether they have a viable claim for defamation. Frequently, clients want to know whether – in addition to suing the individual who first created the false statement and posted it on the Internet – they can also bring claims against those who re-tweeted, re-posted, or otherwise spread the original lie online. For better or worse, the answer is no.
Generally speaking, the tort of defamation involves (a) a publication (either orally or in writing, including on the Internet) that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damages. Taus v. Loftus (2007) 40 Cal.4th 683. By this definition, it would appear at first glance that you could sue anyone who published anything false, unprivileged, and damaging about you – whether or not they created the content or simply repeated it, and regardless of where the statement was published.
However, United States Congress has carved out immunity for statements republished online. In the Communications Decency Act of 1996, Congress declared: “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.” 47 U.S.C. §230(c)(1). Further, “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”§230(e)(3). In other words, if a “user of an interactive computer service” has republished false statements about you, you can’t sue them for that.
But what does “user of an interactive computer service” mean? It has long been established that “user” includes Internet service providers (Facebook, Yelp, Twitter, AOL, etc.) – meaning you can’t sue those entities for defamatory statements posted by others on their platform. See Zeran v. AOL (4th Cir. 1997) 129 F.3d 327. Congress has made a policy decision that Internet service providers cannot be treated as traditional “publishers” (who normally would review content for truth and accuracy before allowing it to be published) of third party content, and that they cannot be sued for defamation posted on their websites.
In Barret v. Rosenthal, the California Supreme Court interpreted Section 230 to extend this type of immunity even further, to individuals who re-post defamatory content online. See Barret v. Rosenthal (2006) 40 Cal.4th 33. In Barret, two doctors filed a defamation lawsuit concerning an article accusing one of the doctors of stalking a third party. Rather than sue the author of the article, the doctors sued defendant Ilena Rosenthal, an individual who had posted a copy of the article on two websites.
The California Supreme Court held that the doctors could not sue the re-poster, Ms. Rosenthal. Discussing Zeran and interpreting Section 230, the Barret court reasoned that there is no operative distinction between “passive” Internet users (like Internet service providers, who only receive information and remove offensive material from the Internet), and “active” Internet users (like Ms. Rosenthal, who post or republish material). See Barret (“[b]y declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.”).
The California Supreme Court discussed how, in enacting Section 230’s statutory immunity, Congress intended to “protect online freedom of expression and to encourage self-regulation.” At the same time, the Barret court acknowledged that “recognizing broad immunity for defamatory republications on the Internet has some troubling consequences,” but held that unless Congress chose to revise the law, a defamation plaintiff may only seek recovery from the original publisher. As such, the two doctors were limited to pursuing the original author of the article, only.
Whether you view the immunities afforded by Section 230 of the Communications Decency Act to be restrictive of a defamation victim’s rights, or critical to ensuring robust free speech online, Section 230 and the case law interpreting it creates a bright-line rule for California defamation practitioners and clients alike. If you have questions about your rights in the realm of online speech, our attorneys would be happy to speak with you to learn how we can help.
Krista L. Baughman is a partner of Dhillon Law Group, whose practice focuses on defamation, trade libel, First Amendment, and California anti-SLAPP law.