Just as the Calblog thing heated up, SFGate reports on an October 2003 CA Appeals Court (1st District) ruling (Barrett v. Rosenthal #A096451) that finds ISPs and other web publishers can be held liable in certain circumstances for libelous comments by 3rd parties on message boards or mail lists. The test seems to be whether the host knows (or reasonably should know) the post to be defamatory.
The ruling creates an impossible burden for ISPs, said Cindy Cohn, a lawyer with the Electronic Frontier Foundation, which promotes free speech on line.This ruling seems to contradict parts of the 4th Circuit ruling in Zeran v AOL, which upheld AOL's immunity even though AOL had been told that a post was resulting in harrassment of an uninvolved 3rd party. However, that ruling is not binding in California. Indeed, the CA Appeals Court says:
"It's not part of their job duties to referee disputes and sort out what's defamatory,'' she said. "In order to protect themselves, they'll take down speech'' after receiving a complaint.
The view of most scholars who have addressed the issue is that Zeran's analysis of section 230 is flawed, in that the court ascribed to Congress an intent to create a far broader immunity than that body actually had in mind or is necessary to achieve its purposes... We share that view.An appeal is certain, first to the CA Supremes, then to federal court, with a possible Supreme Court appeal.