Don't we all?

So Cal Lawyer really hates morons:

Some moron attorney who represents a moron client wants to bring a moronic lawsuit against Calblog for comments left by a third party at her blog. Read about the threatened lawsuit and then be sure to read the very comments at issue that have the moron and the moron's attorney up in arms. Please, please, please go read about these morons. Fortunately, other blogs have come to Calblog's aid.

See also:

The Next Litigation Battleground: Blog Comments by Pejman Yousefzadeh

47 USC 230

Volokh on 47 U.S.C. sec. 230

The Ninth Circuit (CA) has held (more or less) that under 47 U.S.C. sec. 230, discussion group moderators (and bloggers?) are immune from defamation liability for messages posted to their groups, if those messages were originally written by other people (whether group members or not) and then sent to the moderator to be forwarded to the group. This is true even if the moderators manually let those messages go through, or even if they manually posted them; and it's true even if the moderators are quite selective in deciding which messages to post. Under traditional defamation law, the moderators would be legally liable; but 47 U.S.C. sec. 230 limits online defamation liability in certain circumstances, and the Ninth Circuit held that this is one of those circumstances.

Actual Malice on Ninth Circuit Rules on CDA Immunity

The U.S. Court of Appeals for the Ninth Circuit has held, in a 2-1 vote, that the posting of an allegedly defamatory email message (written by a third party) by the moderator of a listerv and operator of a website may be covered by the federal immunity for liability by providers and users of interactive computer services for "information provided by another", as specified in the Communications Decency Act, 47 U.S.C. § 230. Batzel v. Smith, No. 01-56556 (9th Cir. June 24, 2003) [opinion here]

The case arose out of an e-mail message sent by "sometime-handyman" Robert Smith to the Museum Security Network, a nonprofit organization that maintains both a website and an electronic e-mailed newsletter about museum security and stolen art. Smith's e-mail related his experiences while working in the North Carolina home of attorney Ellen Batzel. In the e-mail Smith stated that Batzel had bragged that she was granddaughter of one of Hitler's right-hand men and he believed that she had stated she was a descendant of Heinrich Himmler. Smith called attention to the "hundreds of older European paintings on [Batzel's] walls, all with heavy carved wooden frames," which Batzel has allegedly told Smith she had inherited. Smith then stated, "I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people," and provided her address.

Smith's e-mail was received by Ton Cremers, "then-Director of Security at Amsterdam's famous Rijksmuseumand (in his spare time) sole operator of the Museum Security Network." Cremers, after making some minor changes to Smith's e-mail, then posted the message to the Museum Security Newtwork's listserv and on the Network's website. According to the Court's opinion, "the Network's website and listserv mailings are read by 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."

After discovering the message, Batzel brought suit against Smith, Cremers, the Netherlands Museum Association and Mosler, Inc., an advertiser on the Network's listserv and website.

Cremers filed two motions -- a motion to dismiss for lack of personal jurisdiction, which was denied, and a motion to dismiss based on California's Anti-SLAPP statute, which was also denied. The Ninth Circuit after deciding that it had jurisdiction to review the district court's denial of Cremers' anti-SLAPP motion addressed the issue of whether Cremers' actions were protected by the provisions of § 230 of the CDA.

The Court ultimately found that "a service provider or user is immune from liability under § 230(c)(1) 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.'"

The "reasonable person" qualification arose out of the evidence that Smith claimed that he had no idea that his e-mail would be published by Cremers on the listserv and website. Thus, creating the issue of whether Smith's e-mail qualified as "information provided by another" under the statute.

The Court vacated the district court's order denying Cremers' anti-SLAPP motion and remanded the case to the district court "to develop the facts under this newly announced standard and to evaluate what Cremers
should have reasonably concluded at the time he received Smith's e-mail." The Court continued:

If Cremers should have reasonably concluded, for example, that because Smith's e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the § 230(c) immunities. Under that circumstance, the posted information was not 'provided' by another 'information content provider' within the meaning of § 230. After making such an inquiry, the district court must then evaluate whether Batzel adequately has demonstrated a probability that she will prevail on the merits of her complaint under California's anti-SLAPP statute.

Dissenting from the test set out by the majority for the application of § 230 in this case, Judge Ronald M. Gould wrote:

The majority rule licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity. So long as the defamatory information was written by a person who wanted the information to be spread on the Internet (in other words, a person with an axe to grind), the rumormonger's injurious conduct is beyond legal redress. Nothing in the CDA's text or legislative history suggests that Congress intended CDA immunity to extend so far. Nothing in the text, legislative history, or human experience would lead me to accept the notion that Congress in § 230 intended to immunize users or providers of interactive computer services who, by their discretionary decisions to spread particular communications, cause trickles of defamation to swell into rivers of harm.

The problems caused by the majority's rule all would vanish if we focused our inquiry not on the author's intent, but on the defendant's acts, as I believe Congress intended. We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication. If the defendant took an active role in selecting information for publication, the information is no longer "information provided by another" within the meaning of § 230. We should draw this conclusion from the statute's text and purposes.