Batzel v. Smith
333 F.3d 1018, 2003 WL 21453358 (2003)
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Rule of Law:
Under Section 230 of the Communications Decency Act, an interactive computer service provider is immune from liability for third-party content only if a reasonable person in the provider's position would conclude that the third party furnished the information for the purpose of publication online.
Facts:
- Robert Smith, a handyman, was working for attorney Ellen Batzel at her North Carolina home.
- Smith alleged that Batzel told him she was the granddaughter of one of Adolf Hitler's top officials and that paintings in her home were inherited.
- Believing the art was looted during World War II, Smith sent an email detailing these allegations to an address associated with the Museum Security Network.
- Ton Cremers, the sole operator of the Museum Security Network, received Smith's email.
- Cremers periodically selected emails he received to be included in an electronic listserv mailing and posted on the Network's website.
- After making minor wording changes, Cremers published Smith's email on the Network’s listserv and website.
- Smith later stated that he never intended for his private email to be posted on an international message board.
- Batzel denies Smith's allegations and claims they caused her significant professional and reputational harm.
Procedural Posture:
- Ellen Batzel filed a lawsuit against Robert Smith, Ton Cremers, and others for defamation in the U.S. District Court in Los Angeles.
- Cremers filed a motion to strike under California's anti-SLAPP statute and a motion to dismiss for lack of personal jurisdiction.
- The district court denied both of Cremers's motions.
- Cremers, the appellant, filed an interlocutory appeal of the denial of his anti-SLAPP motion to the U.S. Court of Appeals for the Ninth Circuit, with Batzel as the appellee.
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Issue:
Does Section 230 of the Communications Decency Act immunize the operator of an interactive computer service who publishes a third-party's defamatory email, when the operator may have had reason to know the email was not intended for publication?
Opinions:
Majority - Judge Berzon
No, Section 230 immunity does not apply if the service provider knew or should have known the information was not provided for publication. The immunity for information 'provided by another information content provider' hinges on the context in which the information was furnished. While Section 230 provides broad immunity to encourage self-regulation and free speech online, this purpose is not served by immunizing the publication of content that was reasonably understood to be private. A provider's minor editing or selection of content does not make them a 'content provider,' but they can lose immunity if they publish material that a reasonable person in their position would not have concluded was intended for publication. Because the record is unclear whether Cremers reasonably believed Smith's email was intended for publication, the case is remanded for this factual determination.
Concurring-in-part-and-dissenting-in-part - Judge Gould
No, Section 230 does not immunize a provider who actively selects information for publication. The majority’s test focusing on the author’s intent is unworkable. The correct inquiry should be on the defendant’s conduct. When a provider like Cremers exercises editorial discretion to select a specific message for publication, he adds his own imprimatur to it, transforming it into something more than just 'information provided by another.' Immunity should protect passive conduits and automated systems, not individuals who act as editors and affirmatively choose to disseminate defamatory material. Because Cremers actively selected Smith’s email, he is not entitled to CDA immunity.
Analysis:
This case significantly refines the scope of CDA § 230 immunity by creating a new exception to its otherwise broad protection. It moves beyond the traditional dichotomy of passive platform versus active content creator by introducing a 'reasonable provider' standard. This holding requires courts to conduct a factual inquiry into whether a provider reasonably believed content was intended for publication, potentially exposing operators of listservs, forums, and other services to liability if they publish communications that appear to be private. The decision creates a new potential avenue for plaintiffs to overcome § 230 immunity, which had previously been interpreted as a nearly impenetrable shield.
