Blogging and Defamation Redux

November 21st, 2006

The California Supreme Court handed down a decision today that is great news for bloggers and all participants in online forums. In Barrett v. Rosenthal the court took up several important questions in the ongoing evolution of Section 230 of the Communications Decency Act.

Section 230 protectors users of online services from defamation liability where the users are not the authors of defamatory remarks. In the blogging context this basically means that bloggers are not liable if people leave defamatory remarks in the comments under a post.

The Barrett case is interesting because the court decided to take up a question that has been somewhat open under Section 230: whether any distinction exists between a “publisher” and a “distributor” under the law. Under common law, distributors such as news stands are viewed as more hands-off than publishers, who exercise editorial control, and distributors are given greater leeway. Section 230 specifically immunizes online publishers from liability for defamation, but doesn’t mention distributors.

The court shows just how in-touch it is with the cultural zeitgeist by saying that the publisher/distributor distinction is an artifact of the “post-Gutenberg, pre-cyberspace” world and leads to arbitrary lines drawn online. The court leaves some room for further analysis, but lays down a broad rule that anyone who creates online content that is not original, but cites to another “information service provider” is a publisher, hence immune from liability for defamation.
Put in simple terms, this means that as long as I can find someone else who voiced potentially libelous statements online, and cite to it, I can not be held liable for repeating the comments (note that the original source of the comments is still on the hook). Under this rule, nearly everyone is or can become a publisher- a remarkably Web 2.0-ey opinion.

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