US Appellate Court Rules on Listserv Moderator's Immunity From Defamation

The United States Court of Appeals for the Ninth Circuit recently ruled that a listserv moderator and operator of a website is able to benefit from the immunity-from-liability provisions of section 230 of the Communications Decency Act, 47 USC §230. Section 230 specifies 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." The action was commenced as a result of an e-mail sent by handyman Robert Smith to Ton Cremers, the then-Director of Security at Amsterdam's Rijksmuseum and the sole operator of the Museum Security Network ("Network"). The Network is a non-profit organization that maintains both a website and an electronic newsletter about museum security and stolen art. Within the e-mail message, Smith recounted how his client, Ellen Batzel, had stated that she was the granddaughter of one of Hitler's right-hand men. Smith's message further described how he had seen hundreds of older European paintings on Batzel's walls which he believed were looted during WWII. After making a few minor editing changes, Cremers posted the message on the Network's listserv and on its website. Upon discovering the message, Batzel brought an action for defamation against Smith, Cremer and an advertiser on Network's website. According to the majority's interpretation of section 230, a service provider or user is immune from liability if the 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". Having found that the Network is a user of "interactive computer services", the Court ruled that for the Network to benefit from the immunity provided by the section, a determination of whether the posted information was "provided" by another "information content provider" was required. As defined by the statute, an "information content provider" is "any person or entity that is responsible in whole or in part, for the creation or development of information provided though the Internet or any other interactive computer service". Contrary to Batzel's suggestion, the minor editing of the message prior to its posting by Cremers was not sufficient to classify him as the "information content provider" of the message. Accordingly, the section 230 immunity would apply if a reasonable person in Cremers' position would have concluded that Smith had sent the e-mail for Internet publication. (Smith, who was not a subscriber to the listserv, adamantly asserted that he never intended to have his e-mail message posted.) Possessing insufficient facts to apply this new standard to the case at hand, the Court remanded the case to the lower court for further proceedings to evaluate what Cremers should have reasonably concluded at the time he received Smith's e-mail message. For a copy of the decision, visit: http://makeashorterlink.com/?E46A1211 For another summary of this case, visit: http://www.law.com/jsp/article.jsp?id=1056139892504 Summary by: Lenni Carreiro