Defamation Immunity On The Internet:
An Evolving Body Of Law Has Been Stretched Beyond Its Limits

By JOHN W. DEAN
Friday, Jul. 04, 2003

If you listen, you can hear a voice of caution within the famously maverick U.S. Court of Appeals for the Ninth Circuit.

Recently, the Circuit unwisely held, in Batzel v. Cremers, that a federal statute immunizes certain statements on the Internet from defamation liability. But Judge Ronald M. Gould dissented, urging a closer look at the consequences of the ruling.

Judge Gould - a former law clerk to Justice Potter Stewart and one-time law professor - cautioned his colleagues that "Congress did not want this new frontier to be like the old West: a lawless zone governed by retribution and mob justice."

Yet, as he suggests, a lawless Internet marked by vigilante justice is exactly what this ruling - and others like it that may follow - will encourage.

That is not the result Congress intended when it passed the statute at issue - Section 203 of the Communications Decency Act (CDA). (Much of the rest of the CDA was struck down in Reno v. ACLU, but this section remains law, at least for now.) To see why, it's necessary to look at a bit of the legislative - and legal - history that preceded the CDA's enactment.

Traditionally, Defamation Law Applied to Republishers, Which Include ISPs

Internet service providers (ISPs) are often put in the position of republishing the statements of others - whether in chat rooms, through emails, on message boards, or in other contexts. Under common law principles, that exposes them to defamation liability. Traditionally, a person who repeats, or republishes, the defamation of another is as legally responsible as the original speaker or publisher.

Courts, however, apply different standards of liability to the different types of republishers: publishers, distributors and common carriers.

A publisher is a person or entity that has exercised control over content and dissemination of the defamatory statement. A good example is a newspaper that publishes letters to the editor. Publishers may be held liable for defamation.

In contrast, distributors (newsstands are a classic example) and common carriers (say, a business that provides fax services) exercise no control over content. As a result, they generally may not be held liable for defamation they carry.

Internet service providers (ISPs) are plainly republishers. But what kind of liability should they be exposed to?

Early Court Decisions Incentivized ISPs Not to Control Content

Courts have disagreed. In Cubby v. CompuServe, a federal court in New York allowed the ISP Compuserve to escape liability for statements on its bulletin board on the theory it was a mere distributor.

In contrast, in Stratton Oakmont v. Prodigy - which followed shortly thereafter - a New York state court held that the ISP Prodigy was liable (to the tune of a potential $200 million in damages) for defamatory remarks on its bulletin board.

The Stratton court distinguished Prodigy from Compuserve on the ground that Prodigy held itself out as controlling the bulletin boards' control, while Compuserve did not - it screened content, but only via an independent contractor.

Of course, this was a dubious distinction that allowed one ISP to escape liability merely by outsourcing content control - or simply not exercising any control in the first place. Allowing bulletin boards (and other Internet forums as well) to be an uncontrolled free-for-all was an ISP's safest course under Stratton. And that reality did not escape Congress's notice.

Why the Debate Over Pornography Also Addressed ISP Defamation Liability

At the time, Congress was debating what to do about the glut of pornography on the Internet. Compuserve and Stratton didn't themselves concern pornography, but their implication was clear: The decisions suggested that pornography would thrive given that ISPs now had an incentive not to control content.

After all, if ISPs could escape defamation liability by bowing out, could they escape obscenity prosecutions the same way? And short of obscenity, what about a website's right to simply ensure that its content was decent, and non-pornographic, if it so desired? Under Compuserve and Stratton, "family values" editing was plainly in jeopardy.

As a result, a broad Congressional coalition agreed to remove the defamation problem by including a section in the Communications Decency Act that provided immunity to ISP operators. Under the section, like distributors or common carriers under the common law, ISP operators would be liability-free.

The Cox-Wyden Amendment, Or Section 203 Immunity Provisions

Congressmen Christopher Cox (R. CA) and Ron Wyden (D. OR) introduced the Online Family Empowerment Amendment, which - with ISPs support - passed overwhelmingly.

The Amendment was originally presented as an alternative to the CDA (which many knew might well be struck down by the Supreme Court - as indeed it was). It was a way to gain the assistance of ISPs in the fight against pornography. But it ended up as Section 203 of the CDA, where it has served another purpose.

Ironically, the CDA, which made a mockery of freedom of speech, has become a vehicle for protecting it through Section 203. And when the CDA was struck down, Section 203 survived - meaning that, to add to the irony, the upshot of Congress's efforts was strongly pro-free speech.

Section 203 says 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." (Remember, a "publisher" or a "speaker" is liable under the common law for defamation.)

Section 203 itself is a good thing. But since it was enacted, courts have repeatedly extended its reach far beyond what Congress originally intended: to allow ISPs to de-post offensive postings from their bulleting boards without fear. Batzel v. Cremers is merely the latest example of the trend to push the provision way beyond its purpose.

The Batzel Case: The Facts, the Ruling, and the Dissent

Here's how the case arose: Robert Smith sent an email to the Museum Security Network - a nonprofit that runs a website and email newsletter about museum security and stolen art - and its director, Ton Cremers.

In the email, Smith made highly damaging statements about Ellen Batzel, a Beverly Hills entertainment lawyers, for whom he had done some painting and other renovation work - work that had ended in a billing dispute.

Batzel, Smith alleged, was in possession of paintings looted by Nazis during World War II. He also said she had bragged to him that she was Himmler's granddaughter.

Cremers found Smith's email of interest and after minor edits, he included it in his newsletter - without Smith's permission. He also informed the FBI.

When Batzel learned of this, she was horrified. She advised Cremers she was not Himmler's granddaughter, that she had never claimed such lineage, and that the paintings were all rightfully hers. Concerned about the damages caused by the false charges, she filed a defamation suit against Smith, Cremers and others.

Cremers claimed immunity under Section 203. When the case reached the Ninth Circuit, the panel agreed that he was immune. But in a persuasive dissent, Judge Gould showed why, under the law, he should not be.

Judge Gould's Dissent: Just Follow The Law

Recall the language of Section 203: "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." (Emphasis added.) Judge Gould took issue with the majority's reading of the underlined language - and in particular, on what the word "provided" means in this context.

For immunity, the panel majority merely required a subjective belief on the part of the defendant - here, Cremers - that the information at issue - here, Smith's email - was provided with an intent that it be published on the Internet.

But Judge Gould would have required that the author actually have intended Internet publication. As he pointed out, there is absolutely nothing in the statute that suggests that the definition of when information is "provided by another information content provider" in an way "depends on the defendant's perception of the author's intention." (Emphasis by Judge Gould.)

Judge Gould's reading accords with the intent of the statute. Congress's idea was that ISPs should not suffer for editing publications by others to make them less offensive to readers. In contrast, what Cremers did was to take unpublished material that its author had never intended to publish, and, without further investigation, published it. That is very different. Rather than cleaning up his site's bulletin board, Cremers chose to communicate the substance of Smith's email to his newsletter readers.

What Cremers did is conduct that classically triggers defamation liability, and that Section 203 did not touch. He published previously private, highly damaging material whose veracity - given the author's dispute with Batzel - was already in doubt. And he did so without further investigation. Batzel should thus be able to sue, assuming she can prove the allegations are false, as she has passionately maintained.

Not only does the majority's rule deny justice in Batzel's case, it also will lead to problems in the future, as Judge Gould pointed out. Defendants may lie as to whether they thought the author meant for his material to be published; if they do, it will be hard to catch them. Meanwhile, even the author's own intent may be obscure, especially if he or she is outside the jurisdiction and out of the court's subpoena power, or anonymous.

On the whole, the complex ruling will be, as Judge Gould pointed out, "incomprehensible to most citizens, who will be unable to plan their own conduct mindful of the law's requirements."

A far simpler rule would only extend immunity when the author says "Please publish my email in your newsletter." And even then, with respect to a newsletter (or blog) for which material is carefully selected - as opposed to a bulletin board or email system on which postings are automatic - the case for immunity under Section 203 remains dicey at best.

In the end, newsletter composers and bloggers ought to carefully consider whether they should be spreading a potentially defamatory communication. After all, Congress meant to protect well-intentioned editors - not, as Judge Gould notes, "the professorial rumor-mongers and gossip-hounds" whom the panel majority's opinion has licensed "to spread false and hurtful information with impunity."

If the Panel Decision Is Not Reversed, It Will Be A Blow To Internet Credibility

After this ruling, how is Batzel supposedly to definitively clear her name of some of the most serious charges that could be lodged against someone in her profession - charges that, if believed, might mean disbarment for her? Beyond the serious trauma of fearing others will believe terrible charges that she insists are entirely false, Batzel also must fear her professional future as well.

Despite the panel's erroneous decision, Batzel should not give up hope. The case was sent back to the Federal District Court for further proceedings, consistent with the Ninth Circuit's ruling. At the appropriate point - either now, or after those proceedings - Batzel should seek en banc reconsideration (that is, reconsideration by a larger panel of the Ninth Circuit). One can only hope the Circuit will agree with Judge Gould's far better view of the law, and overrule the panel.

The Internet should not be like the Old West, where persons who are unfairly hurt - and defamatory words do hurt - by others have no legal remedy. After all, when law fails, vigilanteism follows: Aggrieved persons may feel forced to "take the law into their own hands."

And it is not only the rule of law, but the Internet, that will suffer if rulings like these are not reversed, and Section 203's immunity continues to expand. The Internet is just starting to get credibility. In some instances, it is now even competing with mainstream news media - which have started to quote bloggers and Internet commentators.

Yet if this ruling and others like it hold, the Internet will only lose the credibility it has slowly gained. If "anything goes" on the Internet, and no one is held responsible for defaming others, then information from the Internet will always be tainted.

Irresponsible speech is not free speech, just as license is not liberty.


John W. Dean, a FindLaw columnist, is a former Counsel to the President.

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