Court Rules Internet Re-Posting is Protected Speech

Dismisses Defamation Suit Against Breast Implant Activist as Meritless

OAKLAND, CA -- In a trail-blazing 27-page order, Alameda Superior Court
Judge James A. Richman dismissed a defamation lawsuit filed against a
breast implant awareness activist, finding that it was a meritless SLAPP
(Strategic Lawsuit Against Public Participation). The court held that a
1996 federal law protects individuals from civil liability for posting to
an Internet newsgroup a statement created by another.

Ilena Rosenthal, Director of the Humantics Foundation in San Diego, was
sued for defamation based on her postings on Internet newsgroups. On July
25, 2001, Judge Richman granted Rosenthal's motion to dismiss the
complaint against her as a meritless SLAPP. Two self-proclaimed
"Quackbusters," Stephen Barrett, M.D., of Allentown, Pennsylvania, and
Terry Polevoy, M.D., of Canada, joined by their attorney and co-plaintiff,
Christopher Grell, of Oakland, California, filed suit against the
activist. Judge Richman found that none of the plaintiffs had valid claims
against Rosenthal. He ruled that Rosenthal's statements calling Barrett
and Polevoy "quacks," and Barrett "arrogant" and a "bully" who tried to
"extort" her, were not actionable because "they do not contain provably
false assertions of fact, but rather are expressions of subjective

Judge Richman further found that only one statement by Rosenthal was
arguably defamatory -- a document written by someone else which Rosenthal
re-posted to an Internet newsgroup. Judge Richman held that this statement
by Rosenthal was protected under section 230 of the federal Communications
Decency Act (CDA), a law Congress enacted in 1996 expressly "to promote
the continued development of the Internet and other interactive computer
services," which Congress declared should be "unfettered by Federal or
State regulation."

Judge Richman held that section 230 of the CDA "provides immunity to
users, as well as providers, of interactive computer services." He found
that Rosenthal, "as a user of an interactive computer service, that is, a
newsgroup, . . . is not the publisher or speaker" of statements made by a
third person. Thus, Judge Richman concluded, "she cannot be civilly liable
for posting it on the Internet. She is immune."

Lee Tien, Senior Staff Attorney for the Electronic Frontier Foundation
(EFF), the leading Internet civil liberties organization, said "in
enacting section 230, Congress tried to protect free speech on the
Internet from chilling threats of costly litigation. This decision will
help achieve that goal and marks a solid victory for free expression.
Internet speech would be stifled if individuals could be found liable for
the defamatory statements of others."

Mark Goldowitz, counsel for defendant Rosenthal and the Director of the
California Anti-SLAPP Project, said, "Judge Richman's opinion is
significant. To my knowledge, this is the first court to rule that
Internet re-posting is immune from civil liability under federal law. This
ruling greatly advances freedom of speech on the Internet. Also, it is
very rare for a trial court judge to issue anything even close to a
27-page order."

Ilena Rosenthal, one of several defendants named in this high-profile
Internet libel case, heads an international support group for women harmed
by breast implants. Rosenthal believes that this suit, one of several the
so-called "Quackbusters" have filed against critics of their tactics, has
been used to intimidate and threaten others into silence for fear of being
named as a "Doe" in this lawsuit. "They are a dominant threat to
alternative and complementary medical practices and practitioners,"
Rosenthal said. "Their campaigns obstruct health freedom and attempt to
chill the voices of their critics and opponents."


Lee Tien, EFF Senior Staff Attorney


tel: 415 436 9333 x102

Mark Goldowitz, Director

California Anti-SLAPP Project (CASP)


tel: 510-835-0850 x305

Ilena Rosenthal, defendant in Barrett v. Clark

Breast Implant Awareness Activist,

Director, Humantics Foundation


tel: 858-270-0680

AMP Section Name:Technology & Telecommunications
  • 192 Technology & Telecommunications

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