[rdcrisp at earthlink.net: the case of the forwarded email]

[Dave Emery]

----- Forwarded message from Richard Crisp <rdcrisp at earthlink.net> -----

http://www.salon.com/tech/feature/2001/07/13/museum_security_network/index.html

The case of the forwarded e-mail
Online allegations of Nazi-looted art inspire a
suit that could test the limits of Internet libel
law.


- - - - - - - - - - - -
By Jori Finkel

July 13, 2001 | Tax attorney Ellen Batzel regrets
the day she hired Bob Smith to work on her
Asheville, N.C., home. "I hired him to be a
handyman," she says. "I wanted someone to repaint
and refinish the floors: odd jobs."

At first, that's what she got: Smith did the
floors in a few weeks in July 1999. But soon their
relationship soured, leading first to a
small-claims lawsuit over payment for the repairs,
and ultimately to a multimillion dollar federal
lawsuit that involves charges of Nazi war looting
-- and raises fundamental questions about Internet
libel law

In an act that has legal repercussions today,
Smith (who could not be reached for comment for
this story, despite extensive efforts to reach him
by phone and e-mail) apparently fired off an
e-mail to Ton Cremers, the solo operator of the
Museum Security Network, a Netherlands-based
non-profit that tracks news of art theft, looting
and forgery. Cremers' e-mail newsletter reaches
about 1,000 readers worldwide -- a small but
hardcore group of museum security professionals,
curators, art historians, art dealers, art
collectors, lawyers, law enforcement officials and
journalists.

In the e-mail, dated Sept. 8, 1999, Smith
identified himself as a building contractor in
Asheville, and Batzel as his client. The e-mail
then linked Batzel to the Nazis. "[Batzel] 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," it alleged,
adding, "Ellen Batzel has hundreds of older
European paintings hanging 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."

The e-mail included Batzel's address and Smith's
phone number, information that Cremers left intact
when he distributed the e-mail to Museum Security
Network subscribers on Sept. 9.

Several readers, outraged by the posting, shot off
critical e-mails to Cremers. He promptly published
them, beginning on Sept. 11 with a posting from
Christopher Atkins, a media licensing coordinator
at the Museum of Fine Arts in Boston:

"Mr. Smith is completely out of line for
suggesting that some woman with old paintings in
her home has amassed a collection of paintings
from Nazi war booty. His claims, evidence and
assumptions were ridiculous, and he was very
disrespectful of this woman's privacy in offering
this woman's address." Atkins concluded by
admonishing Cremers: "I think it was wrong for you
to take this man's story seriously. Please
respond."

Cremers replied in the same newsletter (and soon
struck Batzel's address from the archived version
of the e-mail). "I do share your opinion about the
quite odd contents of this message," he wrote.
"However, I am convinced that most of our
subscribers have enough common sense to see the
difference between sane and insane... In this case
I have not chosen to behave as a censor. I hate to
do that anyway. I must admit that my decision to
forward Mr. Smith's message may have been wrong.
What is worse: forwarding messages with strange
contents or censor[ing] messages?"

Another Museum Security Network reader, Earl
Merkel, warned Cremers that he could be sued for
libel. Merkel criticized Cremers for jeopardizing
the credibility of the forum "by blithely passing
along what are, without dispute, unsubstantiated
rumors. You may also risk legal consequences, if
your act of 'publishing' this woman's name and
address causes her damage. By no definition is she
a 'public figure' who can usually be libeled with
impunity as long as no 'malice' can be proven. At
the very least, you owe this woman an apology; at
worst, you may end up owing her much of what you
personally own."

Merkel's warning was prophetic. Though Batzel says
she and Smith eventually settled their dispute
over the home repairs (she says she gave Smith
$250, a ladder and some halogen lamps), the
e-mail's allegations have led to a
multimillion-dollar lawsuit. Batzel, who now lives
in Los Angeles, is suing both Smith and Cremers in
federal court for $10 million in defamation,
invasion of privacy and intentional infliction of
emotional distress. And while the suit against
Smith is relatively conventional, the one against
Cremers -- which could reach court by the end of
this year -- tests the cutting edge of Internet
legislation.

Should a Web site based in the Netherlands be
subject to the laws of every country in which it
has readers? Should the landmark 1996
Telecommunications Act, which protects Internet
Service Providers like AOL from libel in the case
of third-party postings, also cover an e-mail
newsletter that publishes unedited letters and
press clippings? And what future is there for a
one-man publishing operation that may have just
enough resources to make editorial judgments, and
errors of judgment, but too few for legal
safeguards like fact-checking?

Batzel did not learn about the e-mail until four
months after it was posted, but she says that the
false statements damaged her career. According to
her complaint, filed in September, 2000, Batzel
has a Nazi-free lineage and an art collection
acquired from "reputable dealers," but suffered
from Smith's allegations to the contrary. She
"lost as clients one prominent Jewish family" and
was the victim of a letter-writing campaign to
have her disbarred. (The campaign was unsuccessful
and its author has not been identified.)

"I had to sell my home in Asheville," says Batzel
from Los Angeles. "Once this came out, I was
afraid to be there. As someone in the district
attorney's office told me: If the real neo-Nazis
find you, we'll never find your body; if the
wannabe neo-Nazis find you, we will find your
body."

Or, as Batzel's attorney Howard Fredman puts it,
"Before taking this case I had to ask myself: Has
my client really been hurt? Is this all going to
go away if we just ignore it? Then she showed me
the letters seeking to have her disbarred. One
traditional reason for defamation suits is to
clear your reputation."

While Fredman seeks to clear his client's name,
Stephen Newman of Latham and Watkins in Los
Angeles, which represents Cremers on a pro bono
basis, is trying to salvage his client's career.
Cremers, who says he "does not make a penny" from
the Museum Security Network, recently lost his
salaried job as the security manager for the
Rijksmuseum in Amsterdam. He was asked to leave in
March, after 13 years of service.

As Cremers recounted over the phone, in an
energetic Dutch accent, "The museum director
reacted very sympathetically when I first informed
him about the possibility of libel, but the
plaintiff has been harassing the museum, sending
them letters, trying to involve them in the
lawsuit. It's very intimidating."

Batzel's attorney admits that his team, "under the
impression that the Rijksmuseum was formally
affiliated with and supported the Museum Security
Network," contacted the Amsterdam museum at one
point. But he stresses that the museum was not
named in the suit.

Cremers also says that cultural differences cloud
the issue. "In our country we are not used to this
sort of litigation. If this happened in the
Netherlands, I don't think any court would accept
the case. But if they did, I might be asked to
apologize and fined $2."

Cremers and his attorney have asked that the case
be dismissed on four grounds, three of which have
been denied.

One argued, unsuccessfully, that Cremers, a
citizen of the Netherlands with no real business
in California, rests far outside the court's
jurisdiction. Another failed attempt at dismissal
asserted inconvenience of forum. The third, also
denied by the judge, identified Cremers as an
Internet service provider, which under the 1996
Telecommunications Act would protect him from
libelous statements made by third-party "content
providers" using his service. The final motion,
and the only one still pending, uses a California
free speech act known as "anti-SLAPP" to try to
force the plaintiff to produce more evidence. A
ruling is expected by August.

If the suit does reach court, some pretrial
arguments are likely to be revisited. First,
there's the question of location: are U.S. libel
laws applicable to an e-mail newsletter that's
generated in the Netherlands but that reaches some
U.S. readers? And, for that matter, are they
enforceable? Then there's the issue of retraction,
a common mitigator in defamation cases. After
posting Smith's e-mail, did Cremers make a
sufficient retraction and apology?

But what really has the attorneys talking is a
single point of law: whether the Museum Security
Network qualifies as an Internet service provider,
which would give it immunity from libel under the
1996 Telecommunications Act.

A key precedent in this issue is Zeran vs. AOL,
1997. In a chat room operated by America Online,
an unidentified visitor had posted a prank note
identifying Kenneth Zeran as a seller of "Oklahoma
City Bombing" T-shirts. After being barraged by
angry phone calls, Zeran sued. AOL won, on the
grounds that the allegedly libelous material was
posted by a third party.

Newman cites the ruling when discussing Batzel's
suit against Cremers. "Even though AOL is a
classic ISP in terms of connecting you to the
Internet," he says, "it does a lot more:
maintaining forums and channels. In this
particular case, AOL had stepped out of the role
of being pure ISP provider, but the court still
applied statutory immunity." Newman completes the
analogy by saying that the Museum Security Network
too represents an "open forum for information"
that deserves protection under the law.

But Batzel's lawyer sees things differently. "My
reading of the case is that if all you do is
provide a bulletin board, it's unlikely that
there's any liability," says Fredman. "On the
other hand, if you are carefully deciding what
goes on the newsletter and adding headlines and
comments, there is no exoneration of
responsibility."

In other words, both sides recognize the legal
distinction between a "content provider" (a
publisher which is liable for content) and an
"ISP" (a platform for third-party publishing
which, so far, anyway, is not). The question is:
Which category does the Museum Security Network
fall into?


Newman argues that the Museum Security Network
qualifies as an ISP for legal purposes because it
offers a neutral forum for the third-party
exchange of news and information. Fredman counters
that the Network is more of a content provider,
since Cremers has a hand in the selection process
and posts an occasional moderator's note.

Along with testing the boundaries of Internet case
law, this issue strikes at the heart of the Museum
Security Network's enterprise. If Fredman is
right, Cremers' involvement with the newsletter
will leave him vulnerable in a court of law. But
it's precisely this human touch that readers
appreciate. Cremers was honored by the Smithsonian
this year for launching the site; his involvement
in the newsletter clearly adds value over the
automatic news alert that, say, a software program
could generate.

Even Cremers' loudest critics, who were quick to
question his publishing of Smith's letter, sound
supportive. When contacted for this story, Atkins
at the Museum of Fine Arts in Boston said he used
to read the Museum Security Network for "articles
on art sales, art theft, art smuggling, art
forgeries, etc. from all over the world. ... As an
added bonus, I found that there was a lot of
contribution from a cast of regular characters and
others who happened upon the site for professional
advice and suggestions. I thought that it was a
great site and a friendly atmosphere."

Merkel, a partner in a Chicago public relations
firm who just sold a novel on Nazi-looted art to
Penguin, agrees. While he reiterates his warning
to the Museum Security Network about "serving as
'cop on the beat,'" he also praises the newsletter
as "a valuable tool, particularly for helping
alert museum security professionals to the ongoing
news of art thefts -- more occur than you might
think."

Cremers himself received similar endorsements this
March, when he asked his readers for feedback on
the service. He was overwhelmed by the response:
"Within two days, I heard from 176 subscribers
from all over the world, from UNESCO to ICOM
(International Council of Museums) in Paris," he
says. Almost all comments were raves.

Whether or not the endorsements help Cremers'
case, they do underscore the ambitiousness, and
vulnerability, of his project. The international
black market for art and antiques is sprawling
(recent estimates put it at $6 billion to $10
billion annually, almost as large as the
legitimate art market), and tracking the stolen
goods is no easy feat. A news bulletin about
stolen art is the kind of service that the
Internet in general, and the Museum Security
Network in particular, was born to deliver.

Now, saddled with the defamation lawsuit, the
Museum Security Network's strengths have become
liabilities. Cremers' involvement in the site
could prove his Achilles' heel, suggesting that an
automated service is safer. Likewise, the
newsletter's international reach could pull the
Netherlands citizen straight into U.S. federal
court, suggesting that the Web venture would do
better to keep its readership low and local. While
the lawyers debate the definition of an ISP, the
future of Cremers' newsletter -- and with it one
model for online publishing -- hangs in the
balance.




----- End forwarded message -----

-- 
	Dave Emery N1PRE,  die at die.com  DIE Consulting, Weston, Mass. 
PGP fingerprint = 2047/4D7B08D1 DE 6E E1 CC 1F 1D 96 E2  5D 27 BD B0 24 88 C3 18