9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator

June 24, 2003. The U.S. Court of Appeals (9thCir) issued its opinion [41 pages in PDF] in Batzel v. Smith, a case involving the application of California's Anti-SLAPP statute to a suit alleging defamation on an internet listserv. The District Court denied a defendant's motion to dismiss under the Anti-SLAPP statute. The Appeals Court, relying upon the federal interactive computer service immunity provision of 47 U.S.C. § 230(c)(1), vacated and remanded.

Background. Defendant Robert Smith is a handyman who was hired by plaintiff Ellen Batzel. Smith wrote an e-mail to the Museum Security Network in which he stated that "A month ago, I did a remodeling job for a woman, Ellen L. Batzel who bragged to me about being the grand daughter of 'one of Adolph Hitler's right-hand men.' At the time, I was concentrating on performing my tasks, but upon reflection, I believe she said she was the descendant of Heinrich Himmler. Ellen Batzel has hundreds of older European paintings on her walls, all with heavy carved wooden frames. She told me she inherited them. I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people." (Paragraph breaks removed.) Batzel disputes Smith's account.

Defendant Ton Cremers, was the Director of Security at the Rijksmuseum in Amsterdam and the sole operator of the Museum Security Network, which maintains a web site and an e-mailed newsletter about museum security and stolen art. He published Smith's e-mail on the Network's listserv. He determined which e-mails to publish. He also made some minor changes to Smith's e-mail. Smith also later stated that he never imagined that his e-mail would be published on the listserv.

District Court. Batzel filed a complaint in U.S. District Court (CDCal) against Smith, Cremers, and others alleging defamation. Federal jurisdiction is based upon diversity of citizenship. Cremers filed a motion to strike under the California Anti-SLAPP statute alleging that Batzel's suit was meritless and that the complaint was filed in an attempt to interfere with his First Amendment rights. The District Court denied his motion. In particular, the District Court held that the Network is not an "interactive computer service" within the meaning of § 230. Cremers filed this appeal.

Statutes. California's Anti-SLAPP (Strategic Lawsuits against Public Participation) statute is codified at Cal. Civ. Proc. Code § 425.16. It provides for the early dismissal of lawsuits that masquerade as ordinary lawsuits,  but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.

§ 230(c)(1) provides 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."

§ 230 defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions."

Court of Appeals. The Appeals Court reviewed the legislative history of § 230, its purposes, and cases that have applied it. The Court was not enthusiastic about the policy justifications for the immunity provision of § 230. Nevertheless, it applied it to vacate the District Court.

The Court wrote that "There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech ``providers and users of interactive computer services´´ when the defamatory or obscene material is ``provided´´ by someone else. This case presents the question whether and, if so, under what circumstances a moderator of a listserv and operator of a website who posts an allegedly defamatory e-mail authored by a third party can be held liable for doing so."

The Appeals Court vacated and remanded to the District Court. However, the Appeals Court did not address whether a listserv fits the definition of "interactive computer service". Nor did the Appeals Court conclude that Cremers has § 230 immunity. It concluded that the factual records needs to be further developed. It vacated the District Court.

The Court reasoned that "There is, however, no need here to decide whether a listserv or website itself fits the broad statutory definition of ``interactive computer service,´´ because the language of § 230(c)(1) confers immunity not just on ``providers´´ of such services, but also on ``users´´ of such services. There is no dispute that the Network uses interactive computer services to distribute its on-line mailing and to post the listserv on its website. Indeed, to make its website available and to mail out the listserv, the Network must access the Internet through some form of ``interactive computer service.´´ Thus, both the Network website and the listserv are potentially immune under § 230."

The Court continued, "Critically, however, § 230 limits immunity to information ``provided by another information content provider.´´ § 230(c)(1). An ``information content provider´´ is defined by the statute to mean ``any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.´´ § 230(f)(3). The reference to ``another information content provider´´ (emphasis added) distinguishes the circumstance in which the interactive computer service itself meets the definition of ``information content provider´´ with respect to the information in question. The pertinent question therefore becomes whether Smith was the sole content provider of his e-mail, or whether Cremers can also be considered to have ``creat[ed]´´ or ``develop[ed]´´ Smith's email message forwarded to the listserv."

"Obviously, Cremers did not create Smith's e-mail. Smith composed the e-mail entirely on his own. Nor do Cremers’s minor alterations of Smith's e-mail prior to its posting or his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv) rise to the level of ``development.´´ As we have seen, a central purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted. Also, the exclusion of ``publisher´´ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message."

The Court concluded that "The ``development of information´´ therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication. 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 § 230."

However, the Appeals Court did not then go on to conclude that Cremers has § 230 immunity, and therefore reverse the District Court. It stated that the analysis is further complicated by Smith's statement that he did not expect his e-mail to be published on the listserv. The Appeals Court wrote that "The question thus becomes whether Smith can be said to have ``provided´´ his e-mail in the sense intended by § 230(c). If the defamatory information is not ``provided by another information content provider,´´ then § 230(c) does not confer immunity on the publisher of the information."

The Court provided detailed guidance to the District Court on this question. It vacated the District Court, and remanded to allow the District Court to further develop the facts, and apply this opinion to those facts.

The Appeals Court also addressed at length issues not covered in this article, including jurisdiction and whether the denial of the Anti-SLAPP motion can be appealed prior to final judgment in the underlying case.