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The California Supreme Court on Monday ruled that ISPs and Internet publishers cannot be sued for posting or distributing libelous material written by others.
At issue in the ACLU v. Gonzales case was the Child Online Protection Act (COPA), which would impose criminal sanctions, with penalties of up to US$50,000 per day and up to six months jail time, for posting content deemed harmful to minors under the law.
The California Supreme Court ruled that Internet providers cannot be sued for posting and distributing defamatory materials recognized under COPA, a law that was signed by President Clinton in 1998 but never enforced. The court, however, did not offer immunity to the authors of the defamatory material.
"We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences," Justice Carol Corrigan wrote for the court.
"Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement," the Justice said.
Consistent Decision Making
The decision overruled a lower court decision that made Google (Nasdaq: GOOG), Yahoo (Nasdaq: YHOO) and others liable for the defamatory content they allowed to be posted and distributed through their Web sites.
The California Supreme Court decision is consistent with prior decisions dating back nine years.
The lower court's ruling was plainly incorrect, said Ian C. Ballon, litigator and shareholder with Greenberg Traurig, in view of the broad scope of protection afforded by the Good Samaritan exemption of the Telecommunications Act of 1996, which the California Supreme Court correctly assessed.
"It is surprising that the Supreme Court held this case for so many years -- which is what fueled speculation that it was going to diverge from all other courts that have looked at this issue -- especially in view of the Court's ultimate holding," Ballon told the E-Commerce Times.
Although this is an Internet case, it also has an impact on defamation law in the offline world, where the rules are much different.
"It simply holds that an interactive computer service or user who e-mails, posts (on a Web site or blog) or otherwise transmits material that someone else wrote cannot be held liable if the communication turns out to be defamatory," Ballon explained.
The Case for Internet Filters
Previously, a federal district court in Philadelphia and a federal appeals court found the online censorship law unconstitutional, and the Supreme Court upheld the ban on enforcing the law in June 2004.
The Justices, however, also asked the Philadelphia court to determine whether there had been any changes in technology that would affect the constitutionality of the statute, such as whether or not commercially available blocking software was as effective as the banned law in blocking material deemed harmful to minors.
During the trial, the ACLU argued that Internet filters would be far more effective at blocking sexually explicit Web sites, and it produced a government expert who testified that AOL's filter blocks more than 98 percent of all sexually explicit sites.
In a study commissioned by the government as part of its defense, experts estimated that 1.1 percent of Web sites cataloged by search engines such as Google and MSN are sexually explicit. About one half of those sites are hosted overseas, where U.S. laws don't apply.
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