State Supreme Court To Hear Internet Libel Case

http://cbs5.com/topstories/local_story_247154828.html

(BCN) SAN FRANCISCO The California Supreme Court is set to hear arguments in San Francisco Tuesday on whether someone who posts a defamatory comment by another person on the Internet can be sued for libel.

Two civil liberties groups say the court’s eventual ruling, due in three months, could have far-reaching implications for free speech on the Internet.

While the case before the court concerns individuals—a Canadian doctor seeking to sue a women’s health activist for posting a third person’s comment about him—the court’s ruling could also determine whether Internet service providers can be held liable when they knowingly allow defamatory remarks to be posted.

Kurt Opsahl, a lawyer with the Electronic Frontier Foundation in San Francisco, said last week “it would be a disaster” if the state high court allows such lawsuits.

“The Internet would not be the rich and diverse place it is now,” Opsahl said.

The foundation joined with the American Civil Liberties Union in a friend-of-the-court brief urging the court to find that the federal Communications Decency Act protects individuals and Internet service providers from such lawsuits.

The two groups wrote in the brief, “Online forums are the modern soapboxes of our age, where the public can debate and comment on the issues of the day, allowing discourse on the widest range of topics and opinions.”

But Oakland attorney Christopher Grell, representing Canadian physician Terry Polevoy, argued in an opposing brief that prohibiting libel lawsuits would violate his client’s right to try to protect his good name.

Grell wrote that activist Ilena Rosenthal’s interpretation of the law “would leave virtually every Internet user or service provider free to post, republish or have published on their Web site whatever anyone wants to post or republish, no matter how libelous and no matter how much notice or proof of the libel is provided.”

In the case before the court, Polevoy sued Rosenthal in Alameda County Superior Court in 2001 for posting comments about Polevoy by another person, Timothy Bolen, on the Web sites of two alternative medicine newsgroups.

At the time, Rosenthal was a breast implant awareness activist in San Diego.

The message alleged that Polevoy, who opposed alternative medicine, had stalked a female radio announcer. The doctor claimed the stalking allegation was false and defamed him.

Rosenthal contends she is protected from the lawsuit by the 1996 Communications Decency Act, which shields Internet service providers and users from being sued for posting statements by third parties.

But Polevoy claims Rosenthal is not covered by the law because she is a “distributor” who publicized the statements rather than a user.

Superior Court Judge James Richman dismissed the case, but in 2003, a three-judge panel of the Court of Appeal in San Francisco reinstated the lawsuit.

The appeals court said the federal law doesn’t protect people who intentionally post a defamatory comment while knowing or having reason to know the statement is false.

Although the court did not rule directly on Internet service providers, the reasoning of the ruling suggested that service providers could be held liable as well.

Rosenthal then appealed to the state high court, which announced in 2004 that it would hear the case.

The hourlong arguments will be heard at 2 p.m. Tuesday in the panel’s courtroom at the state building in San Francisco. The seven-member court will then have 90 days to issue a ruling.

http://cbs5.com/topstories/local_story_247154828.html