1st amend: non commercial publishers not liable for libel

[Major Variola (ret.)]

The Ninth Circuit Court of Appeals ruled last Tuesday that Web loggers,
website operators and e-mail list
editors can't be held responsible for libel for information they
republish, extending crucial First
Amendment 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-server 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.

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