FC: Mailing list operators not liable for libel, Public Citizen argues

[Declan McCullagh <declan@well.com>]

---

Date: Thu, 16 May 2002 12:57:55 -0400
From: "Paul Levy" <PLEVY@citizen.org>
To: <declan@well.com>
Subject: Libel claims against listserv operators

I want to call your attention to a brief as amicus curiae that we recently 
filed in partial support of the appeal of Ton Cremers, the operator of 
Museum Security News, from the refusal of a trial judge in California to 
dismiss a libel action filed against him based on the contents of an email 
message that he included in his MSN Newsletter and web site.  The message 
accused a woman of bragging that she was descended from a Nazi bigwig and 
of having hundreds of paintings which, the message claimed, had been stolen 
from the Jews during World War II.  Thus, the message itself was plainly 
defamatory, and the plaintiff was and is surely entitled to complain about 
having her name blackened by the author of the message.  But Cremers argued 
that, as a listserv operator, he was immune from liability under the 
Communications Decency Act and, hence, the suit against him should be 
dismissed under the California SLAPP law.  The judge refused to dismiss the 
claim on the ground that only ISP's that afford access to the Internet, 
such as AOL, can be immune under the CDA.

Our brief argues that, like the operators of web site message boards, the 
operators of genuinely interactive listserv's should enjoy immunity under 
the CDA.  The proposition that only ISP's like AOL are immune under the CDA 
is plainly wrong.  We also support Cremers argument that, even though 
appeals may normally be taken only from a final order that ends the case, 
and not from denial of a motion to dismiss, he is entitled to appeal 
immediately, without waiting for the case to go to trial, because the whole 
purpose of both CDA immunity and the SLAPP law is to protect persons who 
exercise their right of free speech against having to undergo the burdens 
of litigation in cases that lack legal or factual merit.  (The plaintiff 
had previously move to dismiss the appeal for lack of appellate 
jurisdiction; we participated in the argument on that motion as amicus 
curiae and the motion was denied with leave to raise it again in the briefs 
on the appeal itself).

On the other hand, we express concern that the record on appeal is too 
skimpy to permit the Court of Appeals to satisfy itself that Cremers' 
newsletter is, in fact, an interactive listserv, and so we urge the Court 
to remand to allow the district judge to develop a more complete factual 
record on the issue of interactivity.

Our brief is available on the Internet Free Speech portion of our web site 
at http://www.citizen.org/documents/CremersAmicusBrief1.pdf.  A press 
release about the brief can be viewed at 
http://www.citizen.org/pressroom/release.cfm?ID=1114.


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html




-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
-------------------------------------------------------------------------
Like Politech? Make a donation here: http://www.politechbot.com/donate/
-------------------------------------------------------------------------