It must be show time Ilena. But you forgot what was behind curtain #1.
The decision by the three judges in the Appeals court in California
was unanimous. You have to face the music. You will have to come back
to the United States to face the music, only they in all likelihood
won't be playing your tune.
The rest of us just can't wait for the gavel to drop.
Vera
Metropolitan News-Enterprise
Friday, October 17, 2003
Page 1
Web Poster Who Republishes Defamation May Be Liable—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A recent federal law that immunizes users of interactive computer
services from liability for content authored by others does not
abrogate traditional liability for republication of material that one
knows or reasonably should know to be false and defamatory, the First
District Court of Appeal has ruled.
Div. Two Wednesday breathed new life into claims by Dr. Terry Polevoy,
a Canadian-based physician and operator of the "Quackbuster" website,
that he was libeled in newsgroup postings by Ilena Rosenthal.
The appellate panel overturned Alameda Superior Court Judge James
Richman's dismissal of Polevoy's case under the anti-SLAPP statute.
The court did, however, uphold the dismissal of claims by Polevoy's
co-plaintiff, Dr. Stephen Barrett, saying Barrett did not prove he was
likely to prevail.
The Antagonists
Rosenthal is an advocate of "alternative medicine," while Polevoy and
Barrett have devoted themselves to combating "nonstandard" medical
practices. In striking the plaintiffs' claims under Code of Civil
Procedure Sec. 425.16, Richman ruled that even if Rosenthal defamed
the pair in her postings, she was immune under Sec. 230 of the
Communications Decency Act, which provides in part that "[n]o provider
or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another
information content provider."
But Presiding Justice J. Anthony Kline, writing for the Court of
Appeal, said Polevoy can still prevail if he proves that Rosenthal
knew of the falsity of republished material from other sources
accusing Polevoy of "stalking women" and various specific criminal
acts.
Legislative Intent
The statutory reference to "publisher[s]" does not show legislative
intent to confer absolute immunity, Kline wrote.
Citing the U.S. Supreme Court's Gertz v. Robert Welch, Inc. decision,
Kline wrote:
"Legislative use of the legally uncertain word ‘publisher' is simply
too flimsy a basis upon which to grant providers and users of
interactive computer services what amounts to an ‘absolute protection'
requiring the ‘total sacrifice of the competing value served by the
law of defamation' and the subordination of ‘a concept at the root of
any decent system of ordered liberty.'...When distinguishing the
liability of publishers and distributors, eminent law professors
writing scholarly articles in learned journals commonly use the word
‘publisher' to refer only to a primary publisher, even when their
subject is the transmission of speech in cyberspace."
The case is Barrett v. Rosenthal, 03 S.O.S. 5385.
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http:[email hidden]%3E/talk.politics.medicine
The Rosenthal Case: A Translation
No new territory is covered by the affirmation of the lower court's
opinions
regarding Grell and Barrett. Barrett was wrong in suing over
Rosenthal's
insults (though his feelings are understandable), and Grell was wrong
in
entering the suit as a plaintiff, suing Rosenthal, and encouraging
Barrett to
sue.
However, the court was clearly distressed by the lower court's actions
considering Polevoy, and was adamant in its opinion thereof: "[N]o
reason
appears why Rosenthal cannot be subjected to such liability, the trial
court
erred in finding that appellant Polevoy's defamation claim was barred
by the
statute." Opinion at 36-37 Rosenthal's actions "reflected actual
malice."
Opinion at 40
"The record does not show, and Rosenthal has never claimed, that Bolen
created
or developed this information and furnished it to her under
circumstances in
which a reasonable person in her position would conclude that it was
provided
for publication on the Internet or other 'interactive computer
service.'"
Opinion at 4, Footnote 4
Translation: Only an unreasonable person would have transmitted the
information for public consumption, ie, that Rosenthal abused her
position or
acted unreasonably.
The decision simply reaffirms that insulting someone may not be
defamation.
That's nothing new. On the other hand, it also reaffirms that making
an
accusation that someone is engaged in criminal activity (ie,
"stalking"😉, rises
far above a simple insult. That could be either libel or slander,
depending
upon the manner in which it is conveyed, and whether or not injury can
be
proved. So calling Barrett a "quack" isn't necessarily defamatory, but
stating
that Polevoy IS a stalker could be.
"The charge of commission of some kind of crime is obviously libel per
se." (5 Witkin, Summary of Cal. Law, supra, Torts, § 482, citing,
generally,
50
Am.Jur.2d, Libel and Slander § 27 et seq.; Edwards v. San Jose
Printing &
Publishing Soc. (1893) 99 Cal. 431; Boyich v. Howell (1963) 221
Cal.App.2d
801.) (Opinion at 43)
This is why the court affirmed the case as it applied to Barrett but
reversed
and remanded (sent it back to the lower court) for Polevoy. The
Appellate
court clearly believes that there are merits to Polevoy's claims.
More to the point:
"We find that the immunity available� does not bar the imposition
of liability in this case, that malice and reckless disregard for the
truth can
be inferred from the circumstances, which include the failure to
conduct a
reasonable investigation regarding the truth of the accusation of
criminal
conduct and reliance on obviously biased sources, and that Polevoy was
not
required to plead special damages, as the republished statement was
libelous
per se." Opinion, 10-11
That's pretty self-explanatory.
I found this interesting: "We agree with appellants that the statute
cannot be
deemed to abrogate the common law principle that one who republishes
defamatory
matter originated by a third person is subject to liability if he or
she knows
or has reason to know of its defamatory character." Opinion at 13
This is to prevent a "clever libeler" from using a Third Party to
convey his or
her defamatory statements - something that had struck me as an idea
when I
started reading this opinion. In other words, Person A wants to spread
some
bit of salacious defamation in public, but doesn't want to be held
liable for
it. Therefore, Person A conveys it to Person B, who then spreads it
far and
wide. Person A didn't spread it, and therefore wouldn't be liable. But
Person
B is only repeating what Person A said, and therefore shouldn't be
liable. Uh
uh, says the courts. No way - in this case, given the biased nature of
Bolen,
Rosenthal, were she reasonable and given her position, was probably in
a
position to determine the defamatory character of the information:
"Given the
close relationship Rosenthal had with Bolen, the longstanding
hostility between
Bolen and Polevoy, and the very substance of Bolen's accusations
against
Polevoy, Rosenthal must have been on notice of Bolen's enmity."
Opinion at 39
Later on the in opinion, as to the issue of Rosenthal's SLAPP motion,
the court
makes it clear that Rosenthal never based her SLAPP claim on the issue
of the
defamatory statements, but on the issue of malice and damages: "[H]er
special
motion to strike under the anti-SLAPP statute was not based on the
truth of the
statements that Polevoy engaged in criminal conduct nor did it deny
she knew or
had reason to know of the defamatory character of these statements.
The motion
was based solely on the grounds of the federal immunity, appellants
inability
to show actual malice, and their failure to plead special damages.
Furthermore,
Rosenthal has never asserted that, due to the technology or for any
other
reason, she could not easily withdraw and/or correct the allegedly
defamatory
materials she posted." Opinion at 36
As to the issue of malice, the court said: "We do not believe these
three
findings (the findings of the trial court) support the conclusion that
appellants failed to produce sufficient evidence of malice. On the
contrary, we
conclude that respondent Rosenthal's complete reliance upon sources
known to be
biased against appellant Polevoy provided her "obvious reasons to
doubt the
veracity of the informant or the accuracy of his reports." (McCoy v.
Hearst
Corp., supra, 42 Cal.3d at p. 860.)" Opinion at 38-39
"Rosenthal's failure to consult a reliable source to verify a facially
questionable accusation of criminal conduct supports appellants'
claims that
she entertained serious doubts as to the truth or falsity of the
communication,
and that her complete reliance on sources she knew to be biased, and
therefore
unreliable, reflected actual malice� Complete reliance on sources
known to be
biased-which, as we have said, is more than the mere failure to
investigate-reflects on Rosenthal's subjective attitude and strongly
suggests
she entertained serious doubts regarding the truth of Bolen's
accusations,
certainly after she received notice of their false and defamatory
character."
Opinion at 40
"Here the defendant not only failed to consult any reliable source as
to the
accuracy of criminal charges after being repeatedly notified they were
false
and defamatory, and instead consulted sources she knew to be biased
against the
accused, but she subsequently reposted the allegedly defamatory
accusations 32
times." Opinion at 41
Then the opinion goes on to say that the trial court's decision on
damages was
based in part on their conclusion that Polevoy couldn't prove malice.
But
because Polevoy can probably prove malice, then there is no need to
prove
special damages: "as we have explained, Polevoy may be able to show
malice;
and a public figure plaintiff who can do so need not plead special
damage if,
as is also the case here, the alleged defamation consists of libel (or
slander)
per se." Opinion at 42
" 'Special damage' means that the loss sustained by the plaintiff must
be a
particular loss, of a material nature, supported by specific evidence.
Thus,
'special
damage' is to be contrasted with the 'general damage' that was
traditionally
presumed from the publication of a libel or any of the imputations
that come
within the rules of slander per se." (2 Harper et al., The Law of
Torts, supra,
§ 5.14, at p. 114.)" Opinion at 41, Footnote 18
As to the issue of Grell, the court found him culpable because not
only did he
erringly advocate for Barrett's suit against Rosenthal, but that he
also
entered the case as a plaintiff and named Rosenthal as a defendant in
his own
personal suit.
In the end, the court believes in the distinct possibility that
Rosenthal was
acting out of malice and that Polevoy could prevail on his claims of
defamation. Rosenthal cannot hide behind the claim that she was simply
repeating the claims of Bolen, and that she did not engage in
reasonable
behavior for a person in her position.
... . . . .
As Salaam Alekum, My Sistahs!
Your Friend,
AloysiousX
