I suppose, as a blogger, I should join in and cheer the much-buzzed-about decision in Barrett v. Rosenthal this week, which ruled in California that Internet users who post (to Web sites or discussion groups) defamatory statements originally made by others are immune from liability. Eugene Volokh summarizes:

The California Supreme Court just held, in Barrett v. Rosenthal, that Internet users who post (to Web sites or discussion groups) material created by others are immune from liability.

Federal law, 47 U.S.C. § 230, provides that “No 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.” The California Supreme Court held that this protects not just service providers whose sites are used to post material without the provider’s intervention, but also users who personally select which material (written by others) to post. (The Ninth Circuit held the same three years ago, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).) The court also noted:

At some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source. Because Rosenthal made no changes in the article she republished on the newsgroups, we need not consider when that line is crossed. We note, however, that many courts have reasoned that participation going no further than the traditional editorial functions of a publisher cannot deprive a defendant of section 230 immunity.

A long line of cases had already held that when a user posts material on a site, the operator of the site (or of the computer), can’t be held liable, even when it’s notified of the potentially tortious nature of the activity. Thus, for instance, we wouldn’t be liable for libels posted in our comments. But this case, as well as Batzel and some others, apply this principle even to immunize those who actively repost material, rather than just serve as passive conduits for what others post. This means that if a commenter posts excerpts from others’ work, even the commentator himself would be categorically immune from liability for the contents of those excerpts, at least unless he’s “active[ly] involve[d] in the creation of [the] posting,” or unless he’s conspiring with the original author.

Many of my friends and colleagues in the blogosphere see the decision as a triumph for Internet free speech. See Glenn Reynolds, Danny Glover, and Justin Levine at Patterico’s, for a sample of opinion.

Perhaps because I have a foot in both the MSM and blog worlds and have been the target of defamation, I don’t see the ruling in quite the same positive light.

Why should online speech be held to a different standard than other speech?

If Barrett v. Rosenthal is applied to bloggers, as many assume it will be, if I re-publish a defamatory statement on this blog, I am immune from liability for libel.

But if I re-publish the exact same statement in my syndicated column published in print, I’m liable.

That absurd result is what the ruling seems to suggest and what many bloggers hope it suggests.

But aren’t bloggers the ones arguing that we should be treated like MSM journalists? Isn’t that what the Apple vs. bloggers case was all about? Remember? Seems to me that some bloggers want to enjoy the benefits of MSM status (fighting for the same coverage as traditional journalists under shield laws, as in the Apple case), but avoid the consequences (getting sued if they re-publish defamatory material online).

Strictly speaking, Barrett v. Rosenthal applies only to those who re-publish defamatory statements. It does not apply to the author of the original defamatory post. Anyone who wants to immunize himself from liability, however, can easily bypass that limitation by posting the original defamatory statement anonymously (for example, from a public library or Kinko’s or by using an anonymizer such as Torpark) then re-publishing it under his or her own name. Those savvy enough to game the system in this way will be able to libel their enemies with impunity.

As one commenter at Volokh points out, “This [ruling] is not a victory for free speech, which was already protected; it is a victory for the perpetrators of libel and slander.”

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