DATE: Filed June 24, 2003

COURT: United States Court of Appeals, Ninth Circuit (Before Candy, Gould and Berzon, Circuit Judges. Opinion by Berzon. Gould filed opinion concurring in part, dissenting in part.)

PLAINTIFF: Ellen L. Batzel

DEFENDANTS: Robert Smith, Netherlands Museums Association, Mosler, Inc., and Ton Cremers

AMICUS CURIAE: Public Citizen Litigation Group

ORIGINAL PUBLISHER/SPEAKER: Robert Smith

MATERIAL ALLEGATIONS: Batzel allegedly told Smith that “she was the granddaughter of one of Adolf Hitler’s right-hand men. Smith also maintained that . . . he overheard Batzel tell her roommate that she was related to Nazi politician Heinrich Himmler. According to Smith, Batzel told him on another occasion that some of the paintings hanging in her house were inherited. To Smith, these paintings looked old and European.”

Smith later sent an e-mail to the Museum Security Network, which referred to Batzel, Adolph Hitler, Heinrich Himmler, and “older European paintings,” and stated in part that “I believe [some of Batzel’s] paintings were looted during WWII and are the rightful legacy of the Jewish people.”
…
“After receiving it, Cremers published Smith’s e-mail message to the Network, with some minor wording changes, on the Network listserv. He also posted that listserv, with Smith’s message included, on the Network’s website. Cremers later included it on the Network listserv and posted a “moderator’s message” stating that ‘the FBI has been informed of the contents of [Smith’s] original message.'”

After the posting, Smith e-mailed a subscriber to the listserv . . . explaining that he had had no idea that his e-mail would be posted to the listserv or put on the web. . . . Smith later “told Cremers that if he had thought his e-mail message would be posted on an international message board [he] never would have sent it in the first place.”

“Upon discovering that Smith had not intended to post his message, Cremers apologized for the confusion. He told Smith in an e-mail that “[y]ou were not a subscriber to the list and I believe that you did not realize your message would be forwarded to the mailinglist [sic].”

CAUSE OF ACTION:  Defamation

PROCEDURAL HISTORY:   Defendant Cremers responded to the complaint with “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 U.S. District Court for the Central District of California, Stephen V. Wilson, J., denied Cremers’ anti-SLAPP motion. Cremers appealed.

PROCEDURAL ACTION TAKEN HERE:  Vacated in part, affirmed in part, and remanded.

OUTCOME:  “Section 230(c)(1) supplies immunity for only individuals or entities acting as “provider[s]” or “user[s]” of an “interactive computer service,” and therefore does not apply when it is not “provided” to such persons in their roles as providers or users.”

OPINION:  “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.” Specifically, the Court considered the applicability of Section 230(c)(1), which “set[s] limitations on liability under state law for postings on the Internet and other computer networks.”

The Court first considered the background of the statute and its stated findings and policy objectives, concluding that Section 230 “sought to prevent lawsuits from shutting down websites and other services on the Internet . . . [and] encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material, so as to aid parents in limiting their children’s access to such material.”

The Court first inquired into whether the subject website and listserv were providers or users of an Interactive Computer Service. “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. . . . Thus, both the Network website and the listserv are potentially immune under § 230.”

Next the Court considered the “Another Information Content Provider” prong of Section 230. “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 e-mail message forwarded to the listserv. . . [b]ecause 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.”

Finally, the Court considered whether the subject information was indeed “provided” by Smith. “Smith maintains that he never ‘imagined [his] message would be posted on an international message board or [he] never would have sent it in the first place.’ The question thus becomes whether Smith can be said to have “provided” his e-mail in the sense intended by § 230(c). . . . “[P]rovided” suggests, at least, some active role by the “provider” in supplying the material to a “provider or user of an interactive computer service. . . . [t]he structure and purpose of § 230(c)(1) indicate that the immunity applies only with regard to third-party information provided for use on the Internet or another interactive computer service. . . . the section is concerned with providing special immunity for individuals who would otherwise be publishers or speakers . . . [i]f information is provided to those individuals in a capacity unrelated to their function as a provider or user of interactive computer services, then there is no reason to protect them with the special statutory immunity. . . [t]he congressional objectives in passing § 230 . . . are not furthered by providing immunity in instances where posted material was clearly not meant for publication.”

In making a determination as to ‘provision’, “the focus should be not on the information provider’s intentions or knowledge when transmitting content but, instead, on the service provider’s or user’s reasonable perception of those intentions or knowledge. We therefore hold 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 Court remanded to the District Court with instructions to make a determination on this issue.

DECEMBER 3, 2003 UPDATE:  Circuit Judges Berzon and Canby voted to deny (Circuit Judge Gould voted to grant) Batzel’s petition for rehearing and petition for rehearing en banc. The full court was advised of the petition for rehearing en banc, and a judge of the court requested a vote thereon. The majority of the active judges voted to deny rehearing the matter en banc. Gould, with whom Circuit Judges Tallman and Callahan join, filed a dissent from denial of en banc rehearing.