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

In 1999, Cremers, who was an operator of website Museum Security Network, posted an allegedly defamatory e-mail from Smith, suggesting that Batzel’s art work is related to Nazis. Batzel sued for libel and defamation and won at the Californian District Court in 2001. The district court declined to extend the legislative grant of immunity pursuant to Title 47 U.S.C. Section 230(c) to Cremers and the Network, holding that the Network is not "an internet service provider" and therefore is not covered by the statute. Section 230(c)(1) of the Communications Decency Act states that "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."On Cremers’ appeal, the 9th Circuit affirmed the district court’s decision earlier this year, saying that Batzel did demonstrate a probability that she will prevail on the merits of her complaint, but also ruled that Cremers could not be considered the content provider of the e-mail for purposes of the statute, because it did no more than select and make minor alterations to Smith’s email, thus finding the operator covered by Section 230(c). It held that "a service provider or user is immune from liability 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 would conclude that the information was provided for publication on the Internet." However, the question remains whether Smith can be said to have “provided” his e-mail in the sense intended by Section 230, so the court remanded to district court for further proceeding to evaluate the issue of fact as to “whether the operator could have reasonably concluded that, because the e-mail arrived via a different e-mail address, it was not provided to him for possible posting on the listserv”.

Batzel petitioned, but last week the majority of the panel in the 9th Circuit of Appeals has voted to deny the petition for rehearing and the petition for rehearing en banc. However, Judge Gould voted to grant the petition, joined by Judges Tallman and Callahan, and issued his opinion.

He dissents from the majority’s interpretation of the statutory immunity found in Section 230(c) in light of the Congress’s intent, which, in his opinion, is clearly to immunize screening and post-publication removal, but not to immunize pre-publication selection and editing. He says Cremers’ conduct of selecting, editing and posting without further investigation of the veracity of the content, should trigger the defamation liability, because his posting of the email on the Museum Security Network’s newsletter was a “change in, and addition to, and a novel presentation” of what Smith had already written. According to Gould, Cremers was an “information content provider”, not a mere “internet service provider”, as he was responsible for the “development” of information alleged to be defamatory. Also, Gould argues that Cremers “added what credibility he and his organization may have had to Smith’s bare allegations” by selecting the e-mail for publication. This has an implication for enhanced liability of “bloggers” as opposed to simple internet bulletin board. Gould also exhibits his concern on the future problems the majority ruling might bring, because defendants may lie as to whether they thought the author meant for his material to be published.

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