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Ilena Rosenthal Watch
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  • You can help cure Ilena Rosenthal

    Will Ilena Sing to the Supremes?

    This series of posts appeared on Usenet Groups (Google) in November 2003.

    From NanaWeedkiller

  • Click here for original format
  • From: "Nana Weedkiller" 
    Newsgroups: alt.support.breast-implant,alt.bonehead.ilena-rose
    Subject: Will Ilena Sing to the Supremes?
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    Date: Mon, 17 Nov 2003 07:12:31 GMT
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    In the ongoing Saga of our local Malicious Gossip and Libel Spreader.
    Will she appeal the Appeals Court Decision? Will she take it to
    the next step? Will she take it all the way to the Supreme Court?
    Or will she cower behind the bushes of Costa Rica for the rest of
    her lonely existence? These and other questions will be on the
    minds of Kookwatchers Inc. [tinki]
    
    http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/11/13/MNGPU30H811.DTL

    Bob Egelko, Chronicle Staff Writer Thursday, November 13, 2003 A state appellate court in San Francisco has sent shock waves through cyberspace by ruling that in some instances, Internet service providers like America Online and Yahoo can be held legally responsible for an online smear by someone using their service. The three-member panel of the state Court of Appeal agreed this week to take another look at the ruling, the first by a California court on the question of ISP liability, but such reviews seldom change the results. An appeal to the state Supreme Court seems virtually certain, and the case could even wind up in the U.S. Supreme Court, which frequently steps in to resolve disagreements between lower courts. [...] The plaintiffs, physicians who have campaigned against alleged health care quackery, say they were libeled by hundreds of messages that Ilena Rosenthal, an advocate of alternative medicine, got from another source and posted between 1999 and 2001. One message allegedly accused one doctor, Terry Polevoy, of stalking a radio announcer in Canada, where Polevoy lives. Polevoy said he told Rosenthal the message was false and demanded its withdrawal, but she repeated it in 32 messages to additional newsgroups.

    Not lost in translation

    Click here for original format
    
    X-Admin: news@aol.com
    From: aloysiousx@aol.com (AloysiousX)
    Newsgroups: alt.support.breast-implant
    Date: 18 Nov 2003 15:46:46 GMT
    References: <19faaec.0311171032.19c1afcc@posting.google.com>
    Organization: AOL http://www.aol.com
    Subject: Re: Will Ilena Sing to the Supremes?
    Mime-Version: 1.0
    Content-Type: text/plain; charset=utf-8
    Content-Transfer-Encoding: 8bit
    Message-ID: <20031118104646.03468.00000446@mb-m29.aol.com>
    
    
    >Subject: Re: Will Ilena Sing to the Supremes?
    >From: ilena@san.rr.com  (Ilena)
    >Date: 11/17/2003 1:32 PM Eastern Standard Time
    >Message-id: <19faaec.0311171032.19c1afcc@posting.google.com>
    >
    >Nidiffer posted for the quacks an article with many false statements in it.
    >
    >Here is a more accurate discussion of this important case.
    >
    >
    >
    >http://www.phillipsnizer.com/library/cases/lib_case331.cfm
    >
    
    And here is a repost of both an accurate and readable discussion of this case -
    
    
    The Rosenthal Case:  A Translation
    
    No new territory is covered by the affirmation of the lower court's opinions
    regarding Grell and Barrett.  Barrett was wrong in suing over Rosenthal's
    insults (though his feelings are understandable), and Grell was wrong in
    entering the suit as a plaintiff, suing Rosenthal, and encouraging Barrett to
    sue.  
    
    However, the court was clearly distressed by the lower court's actions
    considering Polevoy, and was adamant in its opinion thereof:  "[N]o reason
    appears why Rosenthal cannot be subjected to such liability, the trial court
    erred in finding that appellant Polevoy's defamation claim was barred by the
    statute."  Opinion at 36-37  Rosenthal's actions "reflected actual malice."
    Opinion at 40
    
    
    "The record does not show, and Rosenthal has never claimed, that Bolen created
    or developed this information and furnished it to her under circumstances in
    which a reasonable person in her position would conclude that it was provided
    for publication on the Internet or other 'interactive computer service.'"
    Opinion at 4, Footnote 4
    
    Translation:  Only an unreasonable person would have transmitted the
    information for public consumption, ie, that Rosenthal abused her position or
    acted unreasonably.
    
    The decision simply reaffirms that insulting someone may not be defamation. 
    That's nothing new.  On the other hand, it also reaffirms that making an
    accusation that someone is engaged in criminal activity (ie, "stalking"), rises
    far above a simple insult.  That could be either libel or slander, depending
    upon the manner in which it is conveyed, and whether or not injury can be
    proved.  So calling Barrett a "quack" isn't necessarily defamatory, but stating
    that Polevoy IS a stalker could be.
    
    "The charge of commission of some kind of crime is obviously libel per
    se." (5 Witkin, Summary of Cal. Law, supra, Torts, § 482, citing, generally,
    50
    Am.Jur.2d, Libel and Slander § 27 et seq.; Edwards v. San Jose Printing &
    Publishing Soc. (1893) 99 Cal. 431; Boyich v. Howell (1963) 221 Cal.App.2d
    801.)  (Opinion at 43)
    
    
    This is why the court affirmed the case as it applied to Barrett but reversed
    and remanded (sent it back to the lower court) for Polevoy.  The Appellate
    court clearly believes that there are merits to Polevoy's claims.
    
    More to the point:  
    "We find that the immunity available… does not bar the imposition
    of liability in this case, that malice and reckless disregard for the truth can
    be inferred  from the circumstances, which include the failure to conduct a
    reasonable investigation regarding the truth of the accusation of criminal
    conduct and reliance on obviously biased sources, and that Polevoy was not
    required to plead special damages, as the republished statement was libelous
    per se." Opinion, 10-11
    
    That's pretty self-explanatory.
    
    I found this interesting:  "We agree with appellants that the statute cannot be
    deemed to abrogate the common law principle that one who republishes defamatory
    matter originated by a third person is subject to liability if he or she knows
    or has reason to know of its defamatory character." Opinion at 13
    
    This is to prevent a "clever libeler" from using a Third Party to convey his or
    her defamatory statements - something that had struck me as an idea when I
    started reading this opinion.  In other words, Person A wants to spread some
    bit of salacious defamation in public, but doesn't want to be held liable for
    it.  Therefore, Person A conveys it to Person B, who then spreads it far and
    wide.  Person A didn't spread it, and therefore wouldn't be liable.  But Person
    B is only repeating what Person A said, and therefore shouldn't be liable.  Uh
    uh, says the courts.  No way - in this case, given the biased nature of Bolen,
    Rosenthal, were she reasonable and given her position, was probably in a
    position to determine the defamatory character of the information:  "Given the
    close relationship Rosenthal had with Bolen, the longstanding hostility between
    Bolen and Polevoy, and the very substance of Bolen's accusations against
    Polevoy, Rosenthal must have been on notice of Bolen's enmity."  Opinion at 39
    
    
    Later on the in opinion, as to the issue of Rosenthal's SLAPP motion, the court
    makes it clear that Rosenthal never based her SLAPP claim on the issue of the
    defamatory statements, but on the issue of malice and damages:  "[H]er special
    motion to strike under the anti-SLAPP statute was not based on the truth of the
    statements that Polevoy engaged in criminal conduct nor did it deny she knew or
    had reason to know of the defamatory character of these statements. The motion
    was based solely on the grounds of the federal immunity, appellants inability
    to show actual malice, and their failure to plead special damages. Furthermore,
    Rosenthal has never asserted that, due to the technology or for any other
    reason, she could not easily withdraw and/or correct the allegedly defamatory
    materials she posted." Opinion at 36
    
    As to the issue of malice, the court said:  "We do not believe these three
    findings (the findings of the trial court) support the conclusion that
    appellants failed to produce sufficient evidence of malice. On the contrary, we
    conclude that respondent Rosenthal's complete reliance upon sources known to be
    biased against appellant Polevoy provided her "obvious reasons to doubt the
    veracity of the informant or the accuracy of his reports." (McCoy v. Hearst
    Corp., supra, 42 Cal.3d at p. 860.)"  Opinion at 38-39
    
    "Rosenthal's failure to consult a reliable source to verify a facially
    questionable accusation of criminal conduct supports appellants' claims that
    she entertained serious doubts as to the truth or falsity of the communication,
    and that her complete reliance on sources she knew to be biased, and therefore
    unreliable, reflected actual malice... Complete reliance on sources known to be
    biased-which, as we have said, is more than the mere failure to
    investigate-reflects on Rosenthal's subjective attitude and strongly suggests
    she entertained serious doubts regarding the truth of Bolen's accusations,
    certainly after she received notice of their false and defamatory character."
    Opinion at 40
    
    "Here the defendant not only failed to consult any reliable source as to the
    accuracy of criminal charges after being repeatedly notified they were false
    and defamatory, and instead consulted sources she knew to be biased against the
    accused, but she subsequently reposted the allegedly defamatory accusations 32
    times." Opinion at 41
    
    Then the opinion goes on to say that the trial court's decision on damages was
    based in part on their conclusion that Polevoy couldn't prove malice.  But
    because Polevoy can probably prove malice, then there is no need to prove
    special damages:  "as we have explained, Polevoy may be able to show malice;
    and a public figure plaintiff who can do so need not plead special damage if,
    as is also the case here, the alleged defamation consists of libel (or slander)
    per se." Opinion at 42
    
    " 'Special damage' means that the loss sustained by the plaintiff must be a
    particular loss, of a material nature, supported by specific evidence. Thus,
    'special
    damage' is to be contrasted with the 'general damage' that was traditionally
    presumed from the publication of a libel or any of the imputations that come
    within the rules of slander per se." (2 Harper et al., The Law of Torts, supra,
    § 5.14, at p. 114.)" Opinion at 41, Footnote 18
    
    As to the issue of Grell, the court found him culpable because not only did he
    erringly advocate for Barrett's suit against Rosenthal, but that he also
    entered the case as a plaintiff and named  Rosenthal as a defendant in his own
    personal suit.
    
    In the end, the court believes in the distinct possibility that Rosenthal was
    acting out of malice and that Polevoy could prevail on his claims of
    defamation.  Rosenthal cannot hide behind the claim that she was simply
    repeating the claims of Bolen, and that she did not engage in reasonable
    behavior for a person in her position.
    
    .    .    .    .    .
    
    As Salaam Alekum, My Sistahs!
    
    Your Friend, 
    AloysiousX