The Samuelson Clinic, on behalf of a group of law professors with expertise in Internet law, submitted a brief to the California Supreme Court supporting reversal of the California Court of Appeal’s narrow interpretation of the Communications Decency Act in Barrett v. Rosenthal. The brief argued that by limiting an Internet provider or user’s immunity from liability for publication of content created by third parties, the Court of Appeal ignored Congress’ explicitly stated policy goals “the promotion of self-regulation and the protection of online speech” and adopted a rule that discourages self-regulatory behavior and guarantees the elimination of protected speech. The brief explained that the court’s flawed reasoning is grounded in a fundamental misunderstanding of Section 230’s legislative history, an unwarranted reliance on legislative silence, and a failure to analyze Congressional action in reference to pre-existing common law principles.
In 2006, The California Supreme Court ruled in Barrett v. Rosenthal that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others, even where those publishers are individual users or can be considered “distributors.” The Court overruled the lower court’s holding which ran contrary to well-settled law interpreting Section 230, stating:
“We conclude that section 230 prohibits “distributor” liability for Internet publications. We further hold that section 230(c)(1) immunizes individual “users” of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal’s judgment.
We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. 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.”