Doctor may appeal California supreme court ruling

By Julia Cheever, Bay City News Service

November 20, 2006

SAN FRANCISCO (BCN) - A lawyer for a Canadian doctor said today his client is considering a U.S. Supreme Court appeal of a California high court ruling barring his libel lawsuit against an activist who posted another person's comment on the Internet.

Christopher Grell, an Oakland attorney representing physician Terry Polevoy, said no decision has been made on whether to seek U.S. Supreme Court review, but said, "We're looking at that right now.

"We're weighing the pros and cons," said Grell, who had argued that Polevoy had a right to sue to protect his good name.

But Mark Goldowitz, a lawyer for Ilena Rosenthal, the woman sued by Polevoy, said of the California Supreme Court ruling, "It's a very good opinion because it protects free speech on the Internet."

The state high court said people who use the Internet to post information originating from another source can't be sued for defamation in the posting.

The panel said unanimously that the federal Communications Decency Act of 1996 protects Internet users as well as service providers from being held liable for information republished from another source.

The ruling dismisses a defamation lawsuit in Alameda County Superior Court filed by Polevoy and another doctor from Pennsylvania against Ilena Rosenthal, a breast implant awareness activist.

Lower courts dismissed claims against the other doctor, but a state appeals court said Polevoy could proceed with a claim that Rosenthal defamed him by posting a comment in which a third person accused him of stalking a Canadian radio producer. Rosenthal posted the comment on two newsgroup Web sites.

Today's ruling overturns the appeals court.

The federal law says, "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."

Justice Carol Corrigan wrote in the state Supreme Court decision, "Congress has comprehensively immunized republication by individual Internet users."

Corrigan said the law "serves to protect online freedom of expression and to encourage self-regulation, as Congress intended."

The court said that "recognizing broad immunity for defamatory republications on the Internet has some troubling consequence," but said it would be up to Congress to make any changes.

Goldowitz said other courts in the nation have ruled that the federal law protects Internet service providers such as Yahoo, Google and America Online, but today's decision is the first time a state high court has said the law protects individual Internet users as well.

The American Civil Liberties Union, which filed a friend-of-the-court brief in the case, said, "Today's ruling affirms that blogs, websites, listserves and Internet service providers like Yahoo as well as individuals" are protected by the federal law.

Kurt Opsahl, a lawyer for the Electronic Frontier Foundation, which joined in the friends of-the-court brief, said the ruling "reaffirms protections for free speech."

"It brings California back in line with all the other jurisdictions that have ruled on the law," Opsahl said.

The federal communications law says, "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."

In contrast to the protections given to Internet providers and users, newspaper and book publishers can be sued for defamatory statements appearing in their print publications.

Copyright © 2006 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

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