9th Circuit Colors in Rules for Web Libel
Jason Hoppin
The Recorder
06-25-2003
The 9th U.S. Circuit Court of Appeals waded into
cyberspace Tuesday to set liability for Web site
operators who put libelous information on the
Internet.
But defining "content provider" under the 1996
Communications Decency Act wasn't as easy as it
might seem. In doing so, a divided court
established a new test for judges to apply.
The case began when Ton Cremers, responsible for
the security of countless priceless Rembrandts
at the famed Dutch Rijksmuseum, received an
intriguing e-mail in 1999 from a North Carolina
handyman.
The tipster, Robert Smith, said he'd done some
work on a house occupied by a lawyer named Ellen
Batzel. Smith claimed he overheard Batzel say
she was the descendent of "one of Adolf Hitler's
right-hand men," and that furthermore, her walls
were decorated with what looked to be old
European paintings.
Cremers runs a Web site called Museum-
Security.org, which tracks thefts of great
artwork and tries to help find them. The site
helps track down missing art by sending clips of
e-mails, articles and other information to
museum directors, law enforcement personnel and
others who sign up for Cremers' listserv.
Batzel says she isn't a Nazi heir, but had
clients in the art world, both in North Carolina
and Los Angeles, where she now resides.
She says Smith was retaliating for a contract
dispute and was upset that she wouldn't pass his
amateur screenplay around to her friends in
Hollywood. She did have some valuable works of
art, but since her house was being renovated
they were wrapped in bubble wrap and kept in the
garage.
"That's hardly where you put the Matisse and the
Renoir," said her lawyer, Howard Fredman of Los
Angeles' Fredman/Lieberman.
Batzel sued Cremens for libel. Tuesday's
decision by a divided 3-judge panel announced a
new rule for those claims: Web site operators
can be sued only for posting information that a
reasonable person would have known wasn't
intended for publication.
"There are facts that could have led Cremers
reasonably to conclude that Smith sent him the
information because he operated an Internet
service," Judge Marsha Berzon wrote. The case
was remanded to determine whether "a reasonable
person in Cremers' position would conclude that
the information was sent for Internet
publication, or whether a triable issue is
presented on that issue."
Berzon was joined by Senior Judge William Canby
Jr., while Judge Ronald Gould dissented.
"In my view, there is no immunity under the CDA
if Cremers made a discretionary decision to
distribute on the Internet defamatory
information about another person, without any
investigation whatsoever," Gould wrote. "If
Cremers made a mistake, we should not hold that
he may escape all accountability just because he
made that mistake on the Internet."
The CDA bars suits against "providers and users
of an interactive computer service" when that
information is provided by another content
provider. Without significantly altering or
editing the Smith e-mail, Berzon wrote, Cremers
could not properly be labeled a content
provider.
As case law has developed over the CDA, courts
have usually held that Internet service
providers and bulletin board hosts cannot be
sued for libel. The individual users, however,
can. Batzel v. Cremers, 03 C.D.O.S. 5465, falls
somewhere in the middle.
In an e-mail message, Cremers said he needed to
talk to his lawyers before commenting. "We are
encouraged by the Ninth Circuit's ruling today,"
said Eric Brown, an attorney at Latham & Watkins
in Los Angeles who is representing Cremers pro
bono.
Fredman said his client, who sought Gould's
broader interpretation of liability, may
consider seeking en banc review. Both he and
Batzel, however, were upset that the court did
not go into greater detail to document their
rebuttals of the claims of Batzel's ancestry.
"Part of the problem is that I was run out of
North Carolina with this crap, and I would like
an opinion that says that Bob Smith never heard
me say I was Himmler's granddaughter," said
Batzel, who added that she lost clients over the
fabrication.
Nor is her art collection a bunch of
masterworks. "You've never seen me in Art +
Auction smiling."