The law of libel has always been more complicated than it at first seems. For example, it's a common misconception that the only defence to a libel action is that it was true - in fact, an "honestly held belief" is also a defence, and to maintain that defence, the maker of the statement only has to be plausible when giving evidence.

The main thing that everyone remembers about libel is that everyone from the writer to the news-stand vendor is liable if the statement is false.

And it's that which has caused many internet businesses to consider the extent of their liability, especially if they host bulletin boards, weblogs and even comments at the end of articles in on-line newspapers.

The newspapers accept that, if they receive a letter and publish it, then they have a duty to avoid libel in it.

But online publishers say that they cannot be expected to vet every comment posted to their websites - and ISPs are in an even more invidious position for they would be required to vet every page posted to every website on their servers.

The Internet is viewed as having such strategic importance to US business that Federal law provides a safe-harbour for ISPs and even publishers.

But now a court has interpreted that as providing safe harbour even for the original poster.

Ilena Rosenthal promotes "alternative medicines." Dr. Stephen Barrett and Dr. Terry Polevoy both have websites in which they write articles exposing, as they see it, the myth of traditional and alternative medicines.

Rosenthal adopted the approach of posting comments about Barrett and Polevoy not just to her own website but to two sites operated by third parties including AoL. The language was, to say the least, intemperate.

Of Barrett it was said that he was “arrogant, bizarre, closed-minded; emotionally disturbed, professionally incompetent, intellectually dishonest, a dishonest journalist, sleazy, unethical, a quack, a thug, a bully, a Nazi, a hired gun for vested interests, the leader of a subversive organization, and engaged in criminal activity (conspiracy, extortion, filing a false police report, and other unspecified acts.)”

Of Polevoy, it was said that he was “dishonest, closed-minded; emotionally disturbed, professionally incompetent, unethical, a quack, a fanatic, a Nazi, a hired gun for vested interests, the leader of a subversive organization, and engaged in criminal activity (conspiracy, stalking of females, and other unspecified acts)” and as having made anti-Semitic remarks.”

Before the Almeda Superior Court in California, Judge Richman found that all the comments except that relating to the alleged stalking were "protected opinion" under California Common Law. That decision was upheld on appeal.

With regard to the allegation of stalking, Rosenthal's defence was that she did not originate the comments. She said, and it was accepted, that the original comments came from an e-mail she received from someone called Tim Bolin. She argued that she was therefore protected under The Communications Decency Act 1996 - an Act which was hugely cut down by constitutional argument that it infringed the rights of free speech designed, as it was, to prevent transmission of offensive material by electronic means of communication.

S320 of the Act has been in the wars: what is left of the provision now includes the following:

"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.” The Act also expressly over-rides state law.

In Rosenthal, the court agreed that this protected the republication by a visitor to a website of the content of an e-mail, even if she knew or suspected that the allegations were false (in this case that of stalking).

It has to be argued that this was not the intention of Congress: it is here argued that the clear intention of the section is to protect an ISP or website proprietor against the hazards resulting from the republishing of material from third party websites. It has to be remembered that, at the time the Act was written, the height of internet design was the use of frames - and the automatic importation of content from one website to another within a frame. Now, a similar concept would apply to RSS and other news feeds that appear on websites.

It is here submitted that the section was not designed to provide carte blanche for the deliberate republication of what would otherwise be a libel. In this case, there was deliberate human intervention, a decision to publish the comments and a clear intention to harm the reputation. Moreover, the case notes appear to suggest that the e-mail from Bolin was a private e-mail. Rosenthal put it into the wider public domain.

If there was ever a case designed to open the floodgates not of litigation but of abuse, this is it.

A person can reproduce any lies, even knowing or suspecting them to be lies, that he finds anywhere on the internet. He does not need to make any inquiry as to its truth and does not need to add any qualification nor even to quote the original source.

Therefore an unfounded statement on an anonymous bulletin board that "Mr X has sex with animals" may be reproduced with impunity.

This decision applies only in the USA. So foreign posters are not protected against libel in their own country - however, subject to conflict-of-laws decisions, the operators of servers, etc. in the US would be protected.

However, what is not clear is whether the fact that the location of the server is in the USA would act as a break in the chain back to an overseas owner of the website.

If, for example, a UK publishing company had its servers in the US (as many do) and a visitor posted libellous material about a UK resident, would that UK publishing company be able to avail itself in a UK court of the protection for its servers and arguably itself, of s230? One suspects not.

And one suspects that in the light of this decision, Congress might review the section and more properly define user and, even, republication. Otherwise no reputation can be protected.

That seemed to be the view of one of the Supreme Court Judges who found in favour or Rosenthal. She agreed that the Court of Appeal should not have found that Rosenthal should not have published what she knew or ought to have known or suspected was wrong.

She said "“We acknowledge that recognising broad immunity for defamatory republications on the Internet has some troubling consequences [but] 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.”

s320 of the Act was originally published as part of a larger "Telecommunications Act." It its original form it reads as follows:

`SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.

`(a) FINDINGS- The Congress finds the following:

`(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

`(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

`(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

`(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

`(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

`(b) POLICY- It is the policy of the United States--

`(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

`(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

`(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

`(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and

`(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

`(c) PROTECTION FOR `GOOD SAMARITAN' BLOCKING AND SCREENING OF OFFENSIVE MATERIAL-

`(1) TREATMENT OF PUBLISHER OR SPEAKER- 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.

`(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of--

`(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

`(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

`(d) EFFECT ON OTHER LAWS-

`(1) NO EFFECT ON CRIMINAL LAW- Nothing in this section shall be construed to impair the enforcement of section 223 of this Act, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute.

`(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW- Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

`(3) STATE LAW- Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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.

`(4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW- Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.

`(e) DEFINITIONS- As used in this section:

`(1) INTERNET- The term `Internet' means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

`(2) INTERACTIVE COMPUTER SERVICE- The term `interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

`(3) INFORMATION CONTENT PROVIDER- The term `information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

`(4) ACCESS SOFTWARE PROVIDER- The term `access software provider' means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

`(A) filter, screen, allow, or disallow content;

`(B) pick, choose, analyze, or digest content; or

`(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.'.