Metropolitan News-Enterprise


Wednesday, June 25, 2003


Page 1


Ninth Circuit Limits Defamation Liability of Website Operators


By KENNETH OFGANG, Staff Writer/Appellate Courts


The operator of a website or bulletin board cannot be held liable for defamatory content provided by another party for publication, even if the operator retains the right to edit and comment on that content, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a decision by a divided panel, the court directed U.S. District Judge Stephen V. Wilson of the Central District of California to reconsider his denial of an anti-SLAPP motion in a defamation suit.

The court said Wilson was wrong when he held that the operator of the Museum Security Network, a website and mailing list devoted to issues of art theft and fraud, is not “an internet service provider” for purposes of 47 U.S.C. Sec. 230. The statute, enacted by the Cox-Wyden amendment to the Telecommunications Act of 1996, immunizes internet service providers from liability for content “provided by another information content provider.”

The panel directed Wilson to reconsider his denial of Ton Cremers’ motion to strike a defamation suit by Beverly Hills attorney Ellen L. Batzel.

Cremers, the former director of security at one of the world’s leading art museums, the Rijksmuseum in Amsterdam, is the sole operator of the Museum Security Network.

Batzel is seeking damages for Cremers’ dissemination of a 1999 e-mail from a man who did some work on Batzel’s North Carolina home. Batzel claimed she had a dispute with the man, Robert Smith, over the amount he was to be paid for some flooring and other work.

In the e-mail, Smith identified himself as a building contractor in Asheville, and Batzel as his client, and suggested she collected artworks that had been plundered by the Nazis.

“[Batzel] bragged to me about being the grand daughter of ‘one of Adolph Hitler’s right-hand men,’” the message read. “At the time I was concentrating on performing my tasks, but upon reflection, I believe she said she was the descendant of Heinrich Himmler.”

Smith continued:

“Ellen Batzel has hundreds of older European paintings hanging on her walls, all with heavy carved wooden frames. She told me she inherited them. I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people.”

Clients Allegedly Lost

Batzel claims that the e-mail, which Cremers distributed with her name and address unredacted, caused her to lose Jewish clients and resulted in fear and humiliation. She told the online magazine Salon that she had to sell the North Carolina house.

“Once this came out, I was afraid to be there,” she told Salon. “As someone in the district attorney’s office told me: If the real neo-Nazis find you, we’ll never find your body; if the wannabe neo-Nazis find you, we will find your body.”

Smith said he found the Museum Security Network through a search engine. Cremers, who worked at the Rijksmuseum for 13 years, told Salon he was fired because of Batzel’s efforts to associate the museum with his Internet operation, which he says is a solo operation and does not make a profit.

Batzel sued Smith, Cremers, the Netherlands Museum Association, and Mosler, Inc., an Ohio-based security firm that paid Cremers $8,000 to be recognized as sponsor of the site.

Motions Denied

Cremers moved to have the suit dismissed for lack of personal jurisdiction and on inconvenient forum ground, and moved to strike under the anti-SLAPP law. Wilson denied all of Cremers’ motions, but granted summary judgment to Mosler on the grounds that it had not defamed Batzel and could not be held vicariously liable because Cremers was not acting as its agent.

That portion of the ruling was appealed by Batzel, but the Ninth Circuit unanimously ruled in favor of Mosler, which it said was not Cremers’ principal because it lacked control of the site’s content.

Cremers appealed the denial of the anti-SLAPP motion to the Ninth Circuit, which agreed that because the anti-SLAPP statute provides substantive protection from certain types of lawsuits, California law allowing the denial of the motion to be appealed applies in federal court.

Judge Marsha Berzon, writing for the Ninth Circuit, said the district judge’s construction of the statute as providing immunity only for those entities that provide direct access to the Internet was inconsistent with congressional intent “to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce.”

The judge explained:

“[A]bsent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and, indeed, at least with regard to publishers, even if unaware of the statement.... Congress, however, has chosen to treat cyberspace differently.”

Berzon rejected the argument that because Cremers chose which e-mails to distribute, and selectively edited content, he was the “provider” of the allegedly defamatory content. “Because Cremers did no more than select and make minor alterations to Smith’s e-mail, Cremers cannot be considered the content provider of Smith’s e-mail for purposes of § 230,” the judge wrote.

The only issue left to be resolved by the district judge, she said, is whether Cremers reasonably believed that Smith—who claims that he only wanted to alert Cremers and never intended to have the e-mail distributed—had submitted the e-mail for publication.

If Cremers held such a belief, and it was reasonable, then he is immune under Sec. 230 and the anti-SLAPP motion must be granted because Batzel cannot prevail against Cremers on the merits, Berzon concluded. Senior Judge William C. Canby Jr. concurred.

Judge Ronald Gould dissented in part, accusing the majority of having adopted an “incorrect and unworkable” interpretation that “licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity.”

The immunity, he argued, should only apply “when the defendant took no active role in selecting the questionable information for publication.”

An attorney for Cremers, Eric Brown of Latham & Watkins, said he was “encouraged” by the decision and predicted his client would win on remand. He predicted the case would have a significant impact.

Batzel’s attorney, Howard S. Fredman of Los Angeles, did not return a MetNews phone call.


Copyright 2003, Metropolitan News Company