Ninth Circuit Denies En Banc Review of Ruling on Liability of Website Operator for Defamation

Thursday, December 4, 2003

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Ninth Circuit Denies En Banc Review of Ruling on Liability of Website Operator for Defamation

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday denied en banc review of a divided panel’s ruling that a 1996 law makes the operator of a website or bulletin board immune from liability for defamatory content provided by another party for publication even if the defendant retained the right to edit the content.

Three judges joined in a dissent from the court’s decision not to take Batzel v. Cremers, 333 F.3d 1018 (9th Cir. 2003), en banc.

“I remain convinced that the panel majority’s interpretation of the statutory immunity...is wrong in light of Congress’s intent, and will needlessly harm persons defamed on the Internet,” Judge Ronald Gould wrote. Gould, who was the dissenter on the three-judge panel, was joined by Judges Consuelo Callahan and Richard Tallman.

The panel, on June 24, directed U.S. District Judge Stephen V. Wilson of the Central District of California to reconsider his denial of an anti-SLAPP motion in the suit by Ellen L. Batzel. The Beverly Hills attorney claims she was falsely accused of collecting Nazi-plundered artworks and that the operator of a website and mailing list devoted to issues of art theft and fraud should be held responsible.

Judge Marsha Berzon, writing for the Ninth Circuit, said Wilson was wrong when he held that Ton Crermers, the operator of the Museum Security Network, was 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.”

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

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. Smith said Batzel “has hundreds of older European paintings hanging on her walls, all with heavy carved wooden frames.”

The e-mail continued:

“She told me she inherited them. I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people.”

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.

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.”

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 [Sec.} 230,” the judge wrote.

Senior Judge William C. Canby Jr. concurred.

In his dissent from the denial of review, Gould argued that Cremers was a content provider because he was, in the language of the statute “responsible, in whole or in part, for the creation or development of information” alleged to be defamatory.

“...Cremers’ actions constituted a change in, addition to, and novel presentation of, the information” Gould argued, because “Cremers added what credibility he and his organization may have had to Smith’s bare allegations” by selecting the e-mail for publication.