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Court Rules That Internet Re-Posting Is Protected Speech
Electronic Frontier Foundation Media Release
Oakland, CA - In a trail-blazing 27-page order, Alameda Superior Court Judge James A. Richman dismissed a defamation lawsuit filed against a breast implant awareness activist, finding that it was a meritless SLAPP (Strategic Lawsuit Against Public Participation). The court held that a 1996 federal law protects individuals from civil liability for posting to an Internet newsgroup a statement created by another.
Ilena Rosenthal, Director of the Humantics Foundation in San Diego, was sued for defamation based on her postings on Internet newsgroups. On July 25, 2001, Judge Richman granted Rosenthal's motion to dismiss the complaint against her as a meritless SLAPP. Two self-proclaimed "Quackbusters," Stephen Barrett, M.D., of Allentown, Pennsylvania, and Terry Polevoy, M.D., of Canada, joined by their attorney and co-plaintiff, Christopher Grell, of Oakland, California, filed suit against the activist. Judge Richman found that none of the plaintiffs had valid claims against Rosenthal. He ruled that Rosenthal's statements calling Barrett and Polevoy "quacks," and Barrett "arrogant" and a "bully" who tried to "extort" her, were not actionable because "they do not contain provably false assertions of fact, but rather are expressions of subjective judgment."
Judge Richman further found that only one statement by Rosenthal was arguably defamatory -- a document written by someone else which Rosenthal re-posted to an Internet newsgroup. Judge Richman held that this statement by Rosenthal was protected under section 230 of the federal Communications Decency Act (CDA), a law Congress enacted in 1996 expressly "to promote the continued development of the Internet and other interactive computer services," which Congress declared should be "unfettered by Federal or State regulation."
Judge Richman held that section 230 of the CDA "provides immunity to users, as well as providers, of interactive computer services." He found that Rosenthal, "as a user of an interactive computer service, that is, a newsgroup, . . . is not the publisher or speaker" of statements made by a third person. Thus, Judge Richman concluded, "she cannot be civilly liable for posting it on the Internet. She is immune."
Lee Tien, Senior Staff Attorney for the Electronic Frontier Foundation (EFF), the leading Internet civil liberties organization, said "in enacting section 230, Congress tried to protect free speech on the Internet from chilling threats of costly litigation. This decision will help achieve that goal and marks a solid victory for free expression. Internet speech would be stifled if individuals could be found liable for the defamatory statements of others."
Mark Goldowitz, counsel for defendant Rosenthal and the Director of the California Anti-SLAPP Project, said, "Judge Richman's opinion is significant. To my knowledge, this is the first court to rule that Internet re-posting is immune from civil liability under federal law. This ruling greatly advances freedom of speech on the Internet. Also, it is very rare for a trial court judge to issue anything even close to a 27-page order."
Ilena Rosenthal, one of several defendants named in this high-profile Internet libel case, heads an international support group for women harmed by breast implants. Rosenthal believes that this suit, one of several the so-called "Quackbusters" have filed against critics of their tactics, has been used to intimidate and threaten others into silence for fear of being named as a "Doe" in this lawsuit. "They are a dominant threat to alternative and complementary medical practices and practitioners," Rosenthal said. "Their campaigns obstruct health freedom and attempt to chill the voices of their critics and opponents."
* For a copy of Judge Richman's 27-page opinion in Barrett v. Clark:
(For discussion of section 230 of the CDA, see pages 17-20.)
* For a copy of section 230 of the Communications Decency Act, 47 U.S.C. Sec. 230:
* For a copy of memoranda filed in support of Rosenthal's special motion to strike:
Lee Tien, EFF Senior Staff Attorney,
Mark Goldowitz, Director, California Anti-SLAPP Project (CASP),
Ilena Rosenthal, defendant in Barrett v. Clark,
breast implant awareness activist, Director, Humantics Foundation,
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member supported organization and maintains one of the most linked-to Web sites in the world:
The California Anti-SLAPP Project (CASP) is a public interest organization dedicated to the eradication of SLAPPs (Strategic Lawsuits Against Public Participation) in California. Founded in 1991, CASP has led a broad coalition for anti-SLAPP legislation, which resulted in enactment of California's pioneering legislation to protect against SLAPPs in 1992, and amendments to strengthen the law's protections in 1997 and 1999. CASP monitors implementation of the anti-SLAPP law and assists SLAPP targets and their attorneys with use of the law. For more information about CASP and SLAPPs:
About defendant Ilena Rosenthal:
For more information about defendant Ilena Rosenthal and her work on breast implant awareness, email her at firstname.lastname@example.org. See also:
Breast Implants: The Myths, The Facts, The Women, by Ilena Rosenthal (information booklet)
Article on saline implants in Glamour Magazine, Nov. 2000:
"Breast Implants, America's Silent Epidemic," in Total Health Magazine, Nov.-Dec. 2000)
Note: EFF has no official position on breast implants or possible health risks thereof. Our interest in this case is the First Amendment issues raised. Press inquiries relating to Ms. Rosenthal's work should be directed to the Humantics Foundation, not EFF.