CLA Publications

The high-tech case had decidedly low-tech beginnings. According to court documents, in the summer of 1999, a Los Angeles area handyman named Robert Smith claimed that Batzel, an attorney, allegedly boasted of being the granddaughter of "one of Adolph Hitler's right-hand men." Smith said he later overheard Batzel telling another person that she was related to Heinrich Himmler, and that Batzel had told him she had inherited her large collection of paintings from relatives.

Smith, wondering whether Batzel's collection could have included pieces acquired through Nazi plunder, sent an email to the Web site of the Netherlands-based Museum Security Network, which he had found through an Internet search engine. Smith's e-mail described Batzel's alleged characterizations of her Nazi ancestry and the provenance of her art collection. The message continued:

"I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people. . . .I do not know who to contact about this, so I start with your organization."

Ton Cremers, the operator of the Web site and the then-Director of Security at Amsterdam's renowned Rijksmuseum, received the message and decided to include it in a periodic compilation of messages and news regarding stolen art that he then mailed out to the site's listserv subscribers.

When Batzel learned of the mailing, she sued both Smith and Cremers for defamation in the United States District Court for the Central District of California. Batzel claimed that the information was false and that she had lost clients as a result of its publication. She further claimed that she was subjected to a bar association investigation and that her social reputation had suffered.

The district court ruled that "provider or user of an interactive computer service" refers only to Internet service providers. Section 230(f)(2) of the CDA defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ."

The district court ruling meant that Cremers, as the operator of a Web site – and not an Internet service provider – was not protected by the CDA.

A three-judge panel of the appeals court, in an opinion by Judge Marsha Berzon, held that although publication of Smith's e-mail in a non-electronic form could have given rise to liability, Cremers' publication of the e-mail via the Internet was shielded by ¤ 230(c)(1) of the CDA. That section provides that "[n]o 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."

Judge Ronald Gould filed an opinion concurring in part and dissenting in part.

The appeals court held that ¤ 230(c)(1) extends to providers of services such as e-mail listservs. The court added that, even without recognizing listservs as interactive computer services, ¤ 230(c)(1) would still control, because it protects both providers and users of interactive computer systems.

Statutory immunity is available only if the allegedly defamatory material was created or developed by someone other than the provider or user of the interactive computer service, the opinion noted. The court said that Cremers enjoyed such immunity because he had neither written the allegedly defamatory e-mail nor made significant editorial changes, and thus could not be considered the creator or developer.

Although such a determination normally would end discussions under ¤ 230(c)(1) analysis, the court said, the facts of this case created additional wrinkles. Because Smith had said he did not intend for Cremers to publish his message and did not even know that the Museum Security Network operated a listserv, the court said it was unclear whether Smith could be considered an information "provider" under the statute. The trial court would have to determine whether, "under all the circumstances, a reasonable person in Cremers' position would conclude that the information was sent for Internet publication, or whether a triable issue of fact is presented on that issue."

Creating such a standard, the court said, would avoid creating a situation in which users and providers of Internet services could freely publish defamatory material that clearly was not intended for publication.

The issue of immunity under the CDA came to the appeals court before the case had been resolved by the district court. Cremers appealed the district court's decision to allow the case to go forward, despite Cremers' claim of immunity under a California statute barring lawsuits brought for the purpose of stifling free speech. (See Cal. Civ. Proc. Code ¤ 425.16). Berzon and Judge William Canby, Jr. nullified the district court's ruling and remanded the issue, saying that the district court must consider whether Cremers' belief that Smith intended his message for publication was reasonable.

A finding that the belief was reasonable would immunize Cremers from liability under the CDA. A finding that Cremers should have known that Smith did not intend his message for publication, however, would allow Batzel's case to move forward.

Judge Gould dissented, saying the court had improperly extended the immunity that Congress had sought to establish in ¤ 230(c)(1). Gould said that the reasonableness standard was unworkable, because it required Internet publishers to judge the subjective intent of those who sent information. An easier method – and one more consistent with the intent of Congress – would be to judge only the actions of the defendant, Gould wrote. In this case, the fact that Cremers actively selected Smith's message for publication was enough to eliminate the immunity provided by ¤ 230(c)(1). The section was created, Gould wrote, to prevent the chilling effect on speech that would occur if service providers whose systems served as conduits for millions of messages each day were responsible for policing the content of each one.

—Doug Peters
Silha Fellow