Wired reports that the US Ninth Circuit Court of Appeals has ruled that bloggers, website operators and e-mail list editors can’t be held responsible for libel for information they republish, extending crucial US Free speech protections to do-it-yourself online publishers.
Online free speech advocates praised the decision as a victory. The ruling effectively differentiates conventional news media, which can be sued relatively easily for libel, from certain forms of online communication such as moderated e-mail lists. One implication is that DIY publishers like bloggers cannot be sued as easily.
One-way news publications have editors and fact-checkers, and they’re not just selling information — they’re selling reliability,” said Cindy Cohn, legal director of the Electronic Frontier Foundation. “But on blogs or e-mail lists, people aren’t necessarily selling anything, they’re just engaging in speech. That freedom of speech wouldn’t exist if you were held liable for every piece of information you cut, paste and forward.”
The court based its decision on a section of the 1996 Communications Decency Act, or the CDA. That section states, “… 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.” Three cases since then — Zeran v. AOL, Gentry v. eBay and Schneider v. Amazon — have granted immunity to commercial online service providers.
Tuesday’s court ruling clarifies the reach of the immunity granted by the CDA to cover noncommercial publishers like list-serve operators and others who take a personal role in deleting or approving messages for online publication.
“Here, the court basically said that when it comes to Internet publication, you can edit, pick and choose, and still be protected,” said Cohn.
The case traces back to a North Carolina town in 1999, where handyman Robert Smith was repairing a truck owned by attorney and art collector Ellen Batzel. Smith claimed to have overheard Batzel say she was related to Nazi Gestapo head Heinrich Himmler. He said he concluded that the European paintings he saw in her home must be stolen goods, and shared this in an e-mail he sent to the editor of the Museum Security Network, an organization that publishes information about stolen art.
Without telling Smith the e-mail would be published, Ton Cremers — the sole operator of Amsterdam-based Museum Security Network –- made minor edits, then posted Smith’s e-mail to a list of about 1,000 museum directors, journalists, auction houses, gallery owners and Interpol and FBI agents.
Three months later, Batzel learned of the post. She contacted Cremers to deny both the stolen art and Nazi ancestry allegations. She also said Smith’s claims were motivated by financial disputes over contracting work.
Smith said he had no idea Cremers would publish a private e-mail on the list or on the Web.
Batzel sued Smith, Cremers and the Museum Security Network for defamation and won. Cremers appealed.
The appeals court questioned whether Cremers’ minor edits to Smith’s e-mail altered it so much that the post became a new piece of expression, and decided it had not. But because Smith claims he didn’t know the e-mail would be published, the court also questioned whether the immunity provision of the Act applied, and passed the case back to the district court. The lower court will reconsider whether Cremers had reasonable belief that Smith’s e-mail was intended for publication.
“Some weblogs are interesting mixes of original and forwarded content, so this issue may come up again in the courts,” EFF’s Cohn said. “Where that legal line is drawn may become a point of contention.”
Ellen Batzel says the case changed her life.
“This was a small, North Carolina mountain town — I talked to the (district attorney) and he said ‘Get a dog, get a gun, get a security system or better yet get out of town.’ I sold my house and moved. I’ve been hurt in my professional reputation and in my private life.
“I know what free speech is, and I support it, but this is about invasion of privacy and my civil liberty. Every time I meet someone now, I have to say, ‘Hi, I’m not Himmler’s granddaughter.”
Attorney Howard Fredman, who represented Batzel in the case, said the next legal steps could include a rehearing before the appeals court, or petitioning the U.S. Supreme Court.