Defamation victory for web site and listserver operators

The case revolved around the question of when, if at all, the editor of a mailing list became liable for circulating an e-mail containing defamatory remarks written by a third party.

The problem began in 1999, when sometime-handyman Robert Smith was working for lawyer Ellen Batzel, fixing her truck outside her house in the North Carolina mountains.

Smith recounted that while working on the truck, Batzel had mentioned that she was "the granddaughter of one of Adolf Hitler's right-hand men." Smith also claimed that Batzel told him on another occasion that some of her paintings were inherited. To Smith, these paintings looked old and European.

So Smith jumped to a conclusion about the origin of the art, searched for web sites on stolen art work, and was directed to the Museum Security Network. He sent his thoughts in an e-mail to the Network. "I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people," wrote Smith

Ton Cremers, then-Director of Security at Amsterdam's famous Rijksmuseum and (in his spare time) sole operator of the Museum Security Network, received Smith's e-mail.

The non-profit Network maintains both a web site and an e-mailed newsletter about museum security and stolen art. Cremers periodically puts together e-mails he receives on stolen art and distributes them to a subscribers on a listserver, an automatic mailing list service that amounts to an e-mail discussion group.

The court actually referred only to a listserv; but, strictly speaking, while this term is commonly used, the proper generic term is a listserver. Listserv is the name of a popular piece of listserver software and a registered trade mark of L-Soft International; but it has become a generic word to many internet users. This issue is addressed in the current OUT-LAW Magazine.

To Smith's surprise, Cremers included his comments in a listserver mailing – which went to hundreds of museum security officials, insurance investigators, and law enforcement personnel around the world, who use the information in the Network posting to track down stolen art. Cremers message made some minor amendments to Smith's wording.

Ellen Batzel discovered the message several months later and complained to Cremers. She dismissed the Nazi allegations, claiming that Smith defamed her because he was upset with her, not over her artwork, but because she had refused to show Hollywood contacts a screenplay he had written.

Cremers contacted Smith to ask about his original comments. Smith made clear that he would never have sent the e-mail if he'd known it would circulate on a listserver and Cremers apologized to him.

Batzel then sued Smith, Cremers and the Netherlands Museum Association for defamation. Cremers argued that Batzel was trying to interfere with his Constitutional right to free speech, and lost. Cremers lost that argument and appealed.

And the 9th Circuit Court of Appeals has now ruled in favour of Cremers and the Netherlands Museum Association on the point.

Judge Marsha Berzon ruled that they could take advantage of a provision in the US Telecommunications Act of 1996 that says:

"[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."

For Judge Berzon, the crucial question was whether Cremers' minor amendments had altered the e-mail so much as to "create" another one - and in her view, they had not.

However, the fact that the e-mail was allegedly posted without Smith's knowledge raised a doubt over whether Smith had actually "provided" it, in terms of the Act, and therefore whether the immunity applied.

Judge Marsha Berzon reasoned that:

"the focus should be not on the information provider's intentions or knowledge when transmitting content but, instead, on the service provider's or user's reasonable perception of those intentions or knowledge."

"We therefore hold that a service provider or user is immune from liability under [the provision of the Act] when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the internet or other 'interactive computer service.'"

So, the court passed the case back down to the district court to determine whether Smith "provided" the e-mail for publication, i.e. whether, under all the circumstances, a reasonable person in Cremers' position would conclude that the information was
sent for internet publication.

The decision is being hailed as a victory for free speech among operators of web sites and listserver - or listserv - moderators.

The text of the decision is available here