# Barrett v. Rosenthal > California Supreme Court · November 20, 2006 · 51 Cal. Rptr. 3d 55 URL: https://www.frixlaw.com/law-library/cases/9787302 ## Case - **Full name:** STEPHEN J. BARRETT Et Al., Plaintiffs and Appellants, v. ILENA ROSENTHAL, Defendant and Respondent - **Court:** California Supreme Court - **Decided:** November 20, 2006 - **Citations:** 51 Cal. Rptr. 3d 55; 40 Cal. 4th 33; 2006 Daily Journal DAR 15188; 146 P.3d 510; 34 Media L. Rep. (BNA) 2537; 2006 Cal. Daily Op. Serv. 10651; 2006 Cal. LEXIS 13529 - **Precedential status:** Published - **Opinion:** Concurrence by Moreno - **Judges:** Corrigan, Moreno - **Cited by:** 131 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9787302 ## How later opinions describe it (automated extraction) - finding that “[i]t cannot be disputed that Facebook’s website” is a public forum 20 within the meaning of section 425.16(b)(1) - finding that “[i]t cannot be disputed that Facebook’s website” is a public forum 23 within the meaning of section 425.16(b)(1) ## Opinion text MORENO, J., Concurring. I concur in the majority opinion. Although there may be a considerable gap between the specific wrongs Congress was intending to right in enacting the immunity at issue here and the broad statutory language of that immunity, that gap is ultimately for Congress, rather than the courts, to bridge. I write separately to express the view that publishers that conspire with original content providers to defame would not be covered by the immunity provided by title 47 United States Code section 230 (c)(1) and (e)(3) (hereafter section 230). I further explain why there is no prima facie showing of conspiracy in the present case. Section 230(c)(1) states: “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.” Section 230(e)(3) states in part: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The majority correctly concludes that this immunity statute does not distinguish between publishers and distributors or between active and passive users. But in my view, this immunity would not apply if the “user” is in a conspiracy with the “information content provider” providing the information. My interpretation is based first on the language of the statute. Section 230(c)(1) applies only to information provided by “another content provider.” (Italics added.) A fair reading of this language suggests that the statute was *64 contemplating an authentic transfer of information between two independent parties. But this transfer does not really occur in a conspiracy to defame, nor are the parties themselves authentically independent. In a conspiracy “ ‘ “ ‘[T]here must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy.’ ” ’ ” (Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 510 [ 20 Cal.Rptr.2d 376 ], italics omitted.) When, for example, two parties conspire to defame someone, agreeing that one party will play the role of “user” and the other, judgment proof, party will play the role of original “content provider,” then the transfer of information that occurs between the two is a sham, a mere vehicle for the defamation. I do not believe the statutory immunity is intended to apply in such circumstances. My conclusion is also supported by the legislative history. As the majority states, quoting the seminal case of Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327 : “the Zeran court reasoned that Congress viewed ‘[t]he imposition of tort liability on service providers for the communications of others’ as ‘simply another form of intrusive government regulation of speech.’ (Zeran, supra, 129 F.3d at p. 330 .) While original posters of defamatory speech do not escape accountability, Congress ‘made a policy choice . . . not to deter harmful online speech [by] imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.’ (Id. at pp. 330-331.) ...[][] The court noted that another important purpose of section 230 was ‘to encourage service providers to self-regulate the dissemination of offensive material over their services.’ (Zeran, supra, 129 F.3d at p. 331 .) . . . ‘Fearing that the specter of liability would . . . deter service providers from blocking and screening offensive material, Congress enacted § 230’s broad immunity,’ which ‘forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.’ (Zeran, supra, 129 F.3d at p. 331 .)” (Maj. opn., ante, at p. 44.) Unlike the Internet service provider, or even the typical user of an interactive computer service, one engaged in a tortious conspiracy with the original information content provider is hardly one of the neutral “intermediaries” that Congress intended to absolve of liability. Imposing liability on such conspirators would not cause service providers to curtail the robust Internet communication they facilitate nor inhibit them from engaging in self-regulation of offensive material. Rather, imposition of liability on those who conspire to defame on the Internet supports Congress’s intent to impose liability on “original posters of defamatory speech” (maj. opn., ante, at p. 44), discouraging collusive arrangements that are designed to maximize the original poster’s impact and/or minimize his or her liability. *65 The question then is whether there is a sufficient showing of conspiracy to defame in this case. In order to defeat a motion to strike made pursuant to the anti-SLAPP (strategic lawsuit against public participation) statute, when it has been determined that the cause of action against the defendants arises from acts in furtherance of the exercise of free speech or other protected activity under Code of Civil Procedure section 425.16, “ ‘the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 [ 124 Cal.Rptr.2d 530 , 52 P.3d 703 ].) Plaintiffs alleged in their complaint that Rena Rosenthal, Tim Bolen, and other defendants conspired to defame them. Because the trial court concluded that the only potentiaUy defamatory statement was made against Dr. Terry Polevoy, and because it is uncontroverted that Bolen was the originator of that statement, plaintiffs can only prevail if they make a prima facie showing that Rosenthal and Bolen conspired to defame Dr. Polevoy. I conclude that plaintiffs have failed to make that showing. The uncontroverted evidence is that Rosenthal did not know of Dr. Polevoy until she read Bolen’s e-mail containing the alleged defamatory statement that Polevoy stalked Canadian radio producer Christine McPhee. Rosenthal called McPhee, who confirmed Bolen’s statement. Her republication of the defamation occurred after that call. It is true that Rosenthal and Bolen knew each other before the alleged defamatory e-mail was posted and reposted and that they shared some similar views about alternative medicine. It also may well be true that Rosenthal’s investigation of Dr. Polevoy’s incident with McPhee fell considerably short of the type of investigation a reasonable person would undertake before republishing potentially defamatory material, inasmuch as she did not contact the appropriate law enforcement authorities to corroborate McPhee’s story. But these facts are not sufficient to establish a prima facie case of conspiracy to defame Dr. Polevoy, i.e., a preconceived plan and unity of design and purpose on the part of Rosenthal and Bolen to defame. 1 It is a closer question whether plaintiffs could have shown a prima facie case of conspiracy by Bolen and Rosenthal against Dr. Stephen Barrett, since Bolen and Rosenthal appeared to have shared a history of hostility toward *66 Dr. Barrett. As the lower courts correctly concluded, however, none of the hostile comments against Dr. Barrett alleged in the complaint are defamatory. I therefore conclude the majority is correct in reversing the judgment of the Court of Appeal. Moreover, even assuming plaintiffs are correct that the trial court wrongly denied them the ability to depose Rosenthal, Bolen and McPhee, as the Court of Appeal concluded, their stated reason for taking such depositions was to inquire into whether a defendant’s defamatory statements were made with reckless disregard for the truth. Even if a deposition established such reckless disregard on Rosenthal’s part, this would not show a preexisting conspiracy to defame Dr. Polevoy, nor negate the fact that Rosenthal was unacquainted with him before receiving the alleged defamatory e-mail. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9787302. Public record. Not legal advice.