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Recently, in Barrett v. Rosenthal, the California Supreme Court held, similar to most courts addressing the issue, that bloggers are immune from being sued for “distributor” liability under defamation law. Under defamation law, the original speaker of a defamatory statement (a false statement that harms a person’s reputation) is liable. A “distributor,” one who further disseminates a falsehood spoken by another and who “knows or should have known” about the defamatory nature of a statement, is also liable. A federal law, 47 U.S.C. § 230, however, 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.” Most courts have interpreted § 230 to immunize the operators of websites or blogs against distributor liability for comments posted by others.

On the surface, Barrett doesn’t appear to be all that exceptional a case. Yet it is noteworthy because the California Supreme Court is reversing a rather notable opinion by the California Court of Appeals, which had taken a different interpretation of § 230 that didn’t provide such a broad immunity.

Most courts are interpreting § 230 very broadly. The plain meaning of § 230 is far from clear, but courts are reading it as a broad federal abrogation of a significant dimension of state defamation law. The court in Barrett stated that if its interpretation was at odds with what Congress wanted, Congress could always clarify the law. But this argument can be made for any interpretation. Perhaps courts should err on the side of narrowly interpreting federal laws that could preempt state law.

Moreover, I find § 230 immunity to be somewhat of a problem because it creates a rather inconsistent body of law. For example, consider the following scenarios:

1. You tell me a libel about X and I then write about it on my blog.

In this situation, § 230 would not apply. I’m the publisher, and I would be liable for defamation assuming other limitations on defamation liability don’t apply.

2. You email me a libel about X and I then post your email on my blog.

This situation is unresolved. Some courts say I’m not the publisher and am immune. For example, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the court stated that a person who forwarded an email by another to a newsgroup was immune under § 230. Barrett involved a somewhat similar situation, and the court explicitly dodged the question of whether the defendant could be considered the “publisher” and be liable (the court only held that § 230 eliminated distributor liability). I find the Batzel holding to be quite dubious. Is there any difference between this scenario and #1 besides the fact that #1 was said orally and #2 was by email?

3. You post a comment to my post with a libel about X. I’ve set up my blog so that it requires my approval before any comments are posted. I get an email notification of your comment; I approve it; and your comment gets posted.

What would courts do here? I bet most will say that I’m immune, even though I deliberately allowed your comment to be posted. But is this much different than #2?

4. You post a comment to my blog with a libel about X. I’ve set up my blog so it allows comments to be automatically posted without my prior approval. X emails me that it is defamatory and asks me to take it down. I refuse.

In this scenario, most courts would hold that I’m immune. Is this really that much different than #3? Once I’m emailed about it, aren’t I in virtually the same position as I am in #3?

For some other interesting discussions of the Barrett decision, see the following posts by Eugene VolokhEric Goldman, and Michelle Malkin [link no longer available].

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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