Will Ilena Sing to the Supremes?
This series of posts appeared on Usenet Groups (Google) in November 2003.
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From: "Nana Weedkiller"
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]
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
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From: firstname.lastname@example.org (AloysiousX)
Date: 18 Nov 2003 15:46:46 GMT
Organization: AOL http://www.aol.com
Subject: Re: Will Ilena Sing to the Supremes?
Content-Type: text/plain; charset=utf-8
>Subject: Re: Will Ilena Sing to the Supremes?
>From: email@example.com (Ilena)
>Date: 11/17/2003 1:32 PM Eastern Standard Time
>Nidiffer posted for the quacks an article with many false statements in it.
>Here is a more accurate discussion of this important case.
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
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
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,
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,
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
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!