July 05, 2003

Batzel v. Smith No Blanket Blogger Immunity

Inter Alia quite rightly noted the error in over-enthusiastic bloggers who've gushed that Batzel v. Smith (9th Cir. 2003) found libel immunity for bloggers. Instead, the case parses 230 of the Communications Decency Act ("CDA") and adds some case law to the interpretation of key terms in that statute.

The decision found that the defendant's website and listserver qualified as an "interactive computer service" and that the offending third-party content was "information provided by another" even though contained in an email whose author never intended it to be distributed on the defendant's service and which the defendant consciously selected for republication. Under the majority's interpretation of 230, such was sufficient to trigger the statutory immunity created to overrule the New York State court decision in Stratton v. Oakmont, 1995 WL 323710.

A far cry from blanket "immunity" for bloggers, but the case's contribution to the case law is harder to summarize in a headline for the popular press. We may be deflating enthusiastic blogger celebration for a while, however. (as Jack M. Balkin is already doing at his blog, Balkinization). Meanwhile, the fact that this case got all the way to the Court of Appeals (and that Judge Gould wrote a dissent that "the majority has crafted a rule that encourages the casual spread of harmful lies") is a good warning that bloggers and listserv operators risk legal expense (or worse) if they fail to fact check before actively republishing statements that could be defamatory if not accurate.

Judge Gould, in his dissent, argued against 230 immunity where (as in this case) the defendant was not a service provider that automatically distributed content entered by others (such as an email network or online bbs) but rather one who did "actively select particular messages for publication." Judge Gould sees as the touchstone of CDA immunity "a human being's decision to disseminate a particular communication" and finds sufficient the assurance of immunity for those providing a service that "permits users to post messages directly in the first instance," even if the provider exercises some editorial control after the fact.

Judge Gould, in the disssent, emphasizes the issue is only immunity in this case, and that "there is no immunity under the CDA if Cremers made a discretionary decision to distribute on the Internet defamatory information about another person, without any investigation whatsoever." Judge Gould's opinion did not carry the majority in this case, but is a warning that another outcome could have resulted (and may yet result) in other Circuits and in the Supreme Court.

Posted by dougsimpson at July 5, 2003 02:07 PM | TrackBack

Mark Glaser of Online Journalism Review posted a comment July 8 at http://www.ojr.org/ojr/glaser/1057697648.php about the Batzel case, mildly chastising various publications for oversimplifying the decision. Glaser rather less mildly criticized the newsletter publisher (Cremers) for republishing what turned out to be unsubstantiated (and false) rumour, without fact checking or approval of its original writer. He also notes that the attorney (Batzel) about whom the false rumors were published intends to seek a re-hearing from the appeals court and is not ready to stand down on her suit.

An excellent article with useful links to the decision and some of the popular press that have sensationalized it.

Posted by: Doug Simpson at July 9, 2003 10:07 AM

John W. Dean criticizes the Batzel decision in "Defamation Immunity On The Internet" at http://practice.findlaw.com/feature-0803.html ... a FindLaw feature ... saying, in part: "a lawless Internet marked by vigilante justice is exactly what this ruling - and others like it that may follow - will encourage." He discusses the case and favors reversal on the theories in Judge Gould's dissent, saying: "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."

John W. Dean is former Counsel to POTUS.

Posted by: Doug Simpson at August 4, 2003 03:17 PM