May 16, 2002

Federal Law Protects Online Moderators From Liability

Interactive Listserv Operators Cannot Be Sued for Message Content, Public Citizen Argues

WASHINGTON, D.C. ? A district court should re-examine whether a listserv operator who posted a message containing defamatory statements can be held responsible for the message?s content, Public Citizen argued in a brief filed today with the U.S. Court of Appeals in California. In the same way as America Online and Yahoo! cannot be sued over content on their message boards under the federal Communications Decency Act (CDA), private listserv operators should also be immune, Public Citizen said.

In the case, California resident Ellen Batzel sued Ton Cremers, who operates the listserv Newsletter of Museum Security News, and Robert Smith, who submitted a message suggesting that Batzel had inherited artwork that was stolen from Jews during the Holocaust. Cremers posted the message without editing it or investigating its validity. In her suit, Batzel alleged libel.

In June 2001, a California district court rejected Cremers? request that the lawsuit be dismissed under California?s anti-SLAPP (Strategic Litigation Against Public Participation) law. That law is based on the recognition that the lawful exercise of First Amendment rights is threatened by the financial and emotional cost of defending against frivolous lawsuits. The law offers defendants a mechanism for seeking prompt dismissal of meritless lawsuits that challenge speech about a public issue or speech made in connection with an official proceeding. Cremers claimed that he was immune under the CDA and therefore the anti-SLAPP law applied to him.

However, the district court ruled that Cremers was not protected by the CDA because he does not provide access to the Internet and thus did not offer an "interactive computer service" as does America Online. However, the CDA does not draw that narrow definition, and numerous courts have held that message board providers cannot be sued for content provided by others, Public Citizen argued.

"The purpose of the CDA is to prevent a chilling effect and to keep the Internet as an open forum," said Paul Alan Levy, an attorney with the Public Citizen Litigation Group, who filed the brief. "What could be more chilling than holding listserv operators responsible for every message that comes through? The act certainly protects providers and users of truly interactive listservs."

This issue is complicated, however, by the fact that listservs range from closely monitored lists, where a moderator approves or censors every message, to open lists, where any member of the public can post. The brief concludes that a listserv is interactive and protected by the CDA if it allows Internet users to both distribute and receive information; the existence of a moderator is not enough to prevent its operator from being covered by the CDA.

Because the evidence in the record is not clear about how this listserv actually works, Levy?s brief urges the appeals court not to determine how this case might ultimately be resolved, but to send the case back to the district court for further development of the facts using the proper standards for the CDA and SLAPP suits.

Public Citizen also argues that, unlike most cases, where a party that fails to get a case dismissed on legal grounds has to wait until the case is over to appeal, an interactive computer service provider should be able to appeal rulings on motions to dismiss while the rest of the case is still pending. Both the CDA and the SLAPP law are intended to protect public speakers from the burden of litigation, and if such defendants have to take their cases to trial, a post-trial appeal will not adequately protect that interest.

Public Citizen is involved in this case because it has a history of defending free speech on the Internet. Click here to view a copy of the amicus curiae brief on the Web.

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