Barrett v. Rosenthal

In Barrett v. Rosenthal (2006) 40 Cal.4th 33, the high court was concerned with the distinction between a publisher and a distributor in the context of a defamation suit. While not exactly on point, the court's construction of section 230 provides us with some guidance on how broadly to interpret section 230 immunity. Importantly, the court noted in Barrett that "the immunity conferred by section 230 applies even when self-regulation is unsuccessful, or completely unattempted." (Barrett, supra, 40 Cal.4th at p. 53.) The court also cited to the legislative history contained in a subsequent federal statute that explicitly supported a broad interpretation of section 230 immunity in negligence cases. (Barrett, at p. 54.) Justice Moreno explained his view that CDA immunity would not apply to a conspiracy in which two parties agreed to defame another, with the judgment-proof conspirator "playing the role of original 'content provider'" and the other conspirator posting the information. (Barrett, supra, 40 Cal.4th at pp. 63-64.) Justice Moreno found the evidence insufficient to support the plaintiffs' charge of conspiracy in their complaint. (Id. at p. 65.) The California Supreme Court explained: "have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source. The immunity has been applied regardless of the traditional distinction between 'publishers' and 'distributors' . . . . . . . . . . Until Congress chooses to revise the settled law in this area . . . , plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement." (Id. at pp. 39-40.)