Volume I

Issue : 2: July 24, 2003

• CryptoLogic Subsidiary Settles Cross-Border On-line Patent Dispute
• U.S. Court of Appeals Formulates Test For Website Operator Liability
• Newfoundlander Convicted of Trafficking in Moose Antlers On the Internet
• Australian Court Grants Damages For Invasion of Privacy In Landmark Case
• Secondary Disclosure of Subscribers Personal Information Contravenes PIPEDA
• Ontario Company Launches Suit Against ICANN Over the Wait List Service
• U.S. Federal Court of Appeals Refuses Jurisdiction Over Semi-Interactive Website
• Music Industry Subpoenas ISP Investigates Users At University
• P2P: Survey Released & Proposed U.S. Legislation With Criminal Provisions
• Original Registrant Losses Acrobat.ca

Home > Volume I > Issue 2: July 24, 2003 > U.S. Court of Appeals Formulates Test For Website Operator Liability

U.S. Court of Appeals Formulates Test For Website Operator Liability

In Batzel v. Cremers ("Batzel"), the U.S. Court of Appeals (9th Cir.) has set a new rule for Internet libel under the 1996 U.S. Communications Decency Act (the "Act"). Batzel involved a "tipster" who sent information about an alleged Nazi heir with old European paintings to the operator of a website that tracks art thefts. Specifically, Ellen Batzel brought a libel suit against Ton Cremers, who was then the Director of Security at Rijkmuseum and also the sole operator of the Museum Security Network. The Network maintains a website and e-mail newsletter regarding stolen Nazi art. Cremers posted an e-mail from Robert Smith, a handyman who did some repairs for Batzel. Smith claimed in his e-mail that he overheard Batzel say she was a descendent of one of Hitler's right-hand men, and further stated his belief that Batzel's paintings were looted during WWII. Smith later insisted that he did not realize that his e-mail would be published, and would not have sent it with that knowledge.

The Court considered whether to extend to Cremers the immunity provided by section 230(c)(1) of the Act, which specifies that "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". The central issue was whether Smith could be considered another content provider given Cremers' participation in posting the e-mail. Cremers would review all e-mails and select which ones to post. Further, he made some minor changes to Smith's e-mail before posting it.

The Court found that Cremers' involvement in posting the e-mail message did not automatically disqualify him from immunity. Rather, the test to be applied is whether a reasonable person in the website operator's position would conclude under the circumstances in which the information was provided that it was intended for publication. The case was remanded for further development of the facts in order to make such determination.

For a copy of the decision, visit:

http://shorl.com/jefejestykiti