Public Citizen PR re suit against a listserv operator.
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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. A copy of the amicus curiae
brief is available on the Web at
citizen.org. |
