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Listserv moderator may be protected by Communications Decency Act

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    NMU         NINTH CIRCUIT         Libel    

Listserv moderator may be protected by Communications Decency Act

  • An electronic mailing list moderator and Web site operator who re-posted a defamatory message from a third party might have immunity from libel under Section 230 of the Communications Decency Act, a federal appeal court ruled.

June 24, 2003 — The re-posting of an e-mail by an electronic mailing list moderator and Web site operator may be protected by Section 230 of the Communications Decency Act, which immunizes from liability such providers when material is provided by someone else, the U.S. Court of Appeals in San Francisco (9th Cir.) ruled today.

However, the court said, the lower court still must determine whether information in this case really was “provided” by a third party.

The case goes back to an email sent by Robert Smith, a handyman working for California attorney Ellen Batzel, to the Museum Security Network. In his e-mail, Smith said Batzel had told him and others about her personal connection to cohorts of Adolph Hitler. He noted that she has “hundreds of older European paintings on her walls,” and said he believed the paintings were looted from Jewish homes during WWII.

Ton Cremers, operator of the Museum Security Network and then-security director for Amsterdam’s Rijksmuseum, re-posted Smith’s e-mail, along with several other e-mail messages he received, to the organization’s Web site and electronic mailing list, or listserv. Cremers regularly distributed other such e-mail to his listserv.

According to court documents, Cremers’ e-mail messages generally are read by “hundreds of museum security officials, insurance investigators and law enforcement personnel around the world.”

Smith claims he never intended such a wide distribution of his email.

After discovering the e-mail, Batzel disputed Smith’s accounts of their conversations and claimed she lost clients because of the posting, according to court documents. She filed a lawsuit against Smith, Cremers, the Netherlands Museum Association and Mosler, Inc, a now-defunct Ohio-based security company, which provided Cremers with funding for the network’s Web site, in federal court in Los Angeles.

Cremers responded with a motion to strike under the California Anti-SLAPP statute, “alleging that Batzel’s suit was meritless and that the complaint was filed in an attempt to interfere with his First Amendment rights,” which was denied in June 2001. Anti-SLAPP statutes provide a defense against “strategic lawsuits against public participation.”

The appeals court reversed the district court’s decision that because Cremers and the network are not Internet service providers, they are not covered by the CDA.

In a 2-1 decision, the appeals panel found that Smith’s submission could be considered a provision by a third party and therefore covered by the CDA.

“There is, however, no need to decide whether a listserv or website itself fits the broad statutory definition of ‘interactive computer service,’ because of the language of [Section 230] confers immunity not just on ‘providers’ of such services, but also on ‘users’ of such services,” Judge Marsha S. Berzon wrote in the majority’s opinion. “There is no dispute that the Network uses interactive computer services to distribute its on-line mailing and to post the listserv on its website.”

At issue in the case are Cremers’ assumptions in distributing Smith’s e-mail.

“If Cremers should have reasonably concluded, for example, that because Smith’s e-mail arrived via a different e-mail address it was not provided to him for possible pointing on the listserv, then Cremers cannot take advantage of the [CDA] immunities,” the court wrote.

The court vacated the district court denial of Cremers’ request anti-SLAPP motion, saying “the district court must then evaluate whether Batzel adequately has demonstrated a probability that she will prevail on the merits of her complaint under California’s anti-SLAPP statute.”

The court granted summary judgement to Mosler, saying Batzel failed to successfully argue that the company had control over the network.

In his dissent, Judge Ronald M. Gould disagreed with the majority’s analysis of the CDA..

“Under the majority’s interpretation of [Section 230], many persons who intentionally spread vicious falsehoods on the Internet will be immune from suit. This sweeping preemption of valid state libel law is not necessary to promote Internet use and is not what Congress had in mind.”

(Batzel v. Smith; Counsel: Stephen J. Newman, Strook & Strook & Lavan LLP, Los Angeles) JL

© 2003 The Reporters Committee for Freedom of the Press

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