09/08/2006 01:58 am ET Updated May 25, 2011

HuffPo Can Sleep Easier Tonight

All indications are that the California Supreme Court is going to affirm that the federal Communications Decency Act ("CDA") immunizes Internet conduits of information provided by others from defamation suits. This will be in conformity with decisions elsewhere and will reverse a Court of Appeal opinion that held otherwise. The case, Barrett v. Rosenthal, was brought by medical doctors against an alternative medicine advocate who posted allegedly defamatory pieces by others with two newsgroups.

The CDA provides that an Interactive Computer Service ("ICS"), meaning a conduit for content provided by others, such as Yahoo, AOL or the HuffingtonPost, is not liable as a "publisher" of that information. Other courts, most notably the federal Fourth Circuit Court of Appeal in Zeran v. AOL, construed this as giving complete immunity from defamation liability, regardless of the knowledge of the ICS.

The Court of Appeal version of Barrett stated that traditionally there had been three categories of those who publicize the libels of others: (1) primary publishers, who are generally strictly liable comparable to the standard for authors, (2) distributors, such as a book store or library, which are held liable if they know or have reason to know of the defamatory nature of the material, and (3) conduits, who have no control over content and ordinarily are immune. The Court of Appeal held that the federal law just said an ICS was not liable as a "publisher' and said nothing about liability as a "distributor," so they can be liable for defamation if they know or have reason to know the material is libelous.

The Zeran v. AOL court held that the CDA gives an ICS total immunity and let AOL off the hook for not taking down material that falsely implied that a Seattle resident was celebrating the Oklahoma City Federal Building bombing. On the same basis, a judge let AOL off the hook for publishing Matt Drudge's false report that Clinton sycophant Sidney Blumenthal had a history of spousal abuse in .Blumenthal v. Drudge even though AOL paid Drudge $3000 a month and had a right to require changes in his content.

In the oral argument earlier this week, according to Bob Egelko of the S.F. Chronicle and Mike McKee of the Recorder, the California Supreme Court appeared to agree with the attorney for amici curiae including and Earthlink that to allow liability based on knowledge would allow a "heckler's veto" over on-line content. ACLU attorney Ann Brick argued that knowledge based liability would discourage self regulation because an ICS would remain as ignorant of the facts relating to posts as it could.

Here is a good blog account of the argument. A decision should be out in time for Christmas.

Note that posters are still liable, but those that facilitate publishing are not. This seems a correct balance and necessary to maintain the Internet as a forum of free speech.

Update: I revised my discussion of Blumenthal v. Drudge