According to the California Supreme Court, it ain’t so.
Monday’s ruling from the California Supreme Court allows broad immunity from libel prosecution due to the Communications Decency Act of 1996. To briefly summarize the case, an email was sent to a health advocate (Ilena Rosenthal) who published the email on her website. The email contained language that was considered libelous by two doctors mentioned in the email. They sued the Rosenthal for knowingly publishing the information after being warned it was false and defamatory.
What makes this ruling especially interesting is that there is no discussion of the accuracy of the email. Whether it would be libelous if published in print, didn’t make it into any of the stories and summaries that I read. Based strictly on the CDA language, the ruling provides a free pass to any one who publishes content online. Any one who publishes another person’s submission online is granted immunity from being held responsible for the accuracy of the submission. In our case, let’s say that I wanted to submit a post to MinTheGap that contained a false accusation about a pastor, a politician, or a parent.
For the post to be published here it has to be approved by MinTheGap himself. Even if he can clearly see that the post is false, he would be under no obligation to stop it from being published. Oh, if the post was tracked back to me as the author I could be sued, but not the publisher.
This has a huge upside in some areas such as bulletin boards, comments, and forums where the publisher just allows posting without moderating each post. If there are too many posts to research each one, then it is hard to fault the publisher for having libelous content on their site.
The downside comes from the publisher being given an entirely free pass. Consider this scenario: a blogger wants to post an accusation against another blogger. If he just posts the accusation and it turns out to be false, then he is likely to get sued for libel. If an anonymous commenter to his blog posts the accusation in a comment, and then the blogger republishes it on his blog suddenly he is immune from a lawsuit. Surely you can think of a few instances where something like that just might happen (the week before an election would seem an opportune time for this scenario to occur).
So we see both a good side of this ruling and bad side to it as well. What makes this interesting enough to mention especially on this site dedicated to discussing our culture? Simply one thing – the root of the issue lies with the Communication Decency Act of 1996. If the CDA had been written in a manner that allowed publishers with uncontrolled posting the immunity and restricted the ability of publishers to knowingly publish libelous material, then we wouldn’t have wasted the time of three different court systems and numerous involved parties. We wouldn’t have an act intended to protect people from inappropriate contact reaching them that now allows libelous content to be published.
So next time you see a bill come out of Congress with a title that sounds particularly good, read the fine print. It may not do exactly what it suggests.