2. Application to Cremers and the Museum Security Network
To benefit from § 230(c) immunity, Cremers must first demonstrate that his Network website and listserv qualify as "provider[s] or user[s] of an interactive computer service." § 230(c)(1) (emphasis added). An "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." § 230(f)(2).
The district court concluded that only services that provide access to the Internet as a whole are covered by this definition. But the definition of "interactive computer service" on its face covers "any " information services or other systems, as long as the service or system allows "multiple users" to access "a computer server." Further, the statute repeatedly refers to "the Internet and other interactive computer services," (emphasis added), making clear that the statutory immunity extends beyond the Internet itself. §§ 230(a)(3), (a)(4), (b)(1), (b)(2), and (f)(3). Also,
the definition of "interactive computer service" after the broad definition language, states that the definition "includ[es] specifically a service or system that provides access to the Internet," § 230(f(2) (emphasis added), thereby confirming that services providing access to the Internet as a whole are only a subset of the services to which the statutory immunity applies. [FN 15]
There is, however, no need here to decide whether a listserv or website itself fits the broad statutory definition of "interactive computer service," because the language of § 230(c)(1) confers immunity not just on "providers" of such services, but also on "users" of such services. [FN 16] § 230(c)(1).
There is no dispute that the Network uses interactive computer services to distribute its on-line mailing and to post the listserv on its website. Indeed, to make its website available and to mail out the listserv, the Network must access the Internet through some form of "interactive computer service." Thus, both the Network website and the listserv are potentially immune under § 230.
Critically, however, § 230 limits immunity to information "provided by another information content provider." § 230(c)(1). An "information content provider" is defined by the statute to mean "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." § 230(f)(3). The reference to "another information content provider" (emphasis added) distinguishes the circumstance in which the interactive computer service itself meets the definition of "information content provider" with respect to the information in question. The pertinent question therefore becomes whether Smith was the sole content provider of his e-mail, or whether Cremers can also be considered to have "creat[ed]" or "develop[ed]" Smith's e-mail message forwarded to the listserv. [FN 17]
[FN 17] We do not separately analyze Cremers's statement regarding contacting the FBI. Batzel has
presented no evidence that the statement was untrue. No action for defamation can go forward absent such
evidence. See Cort v. St. Paul Fire and Marine Ins. Companies, Inc., 311 F.3d 979, 985 (9th Cir.2002) ("An essential element of defamation is that the publication in question must contain a false statement of fact.") (quoting Savage v. Pac. Gas & Elec. Co., 21 Cal.App. 4th 434, 444 (1993)).
Obviously, Cremers did not create Smith's e-mail. Smith composed the e- mail entirely on his own. Nor do Cremers's minor alterations of Smith's e-mail prior to its posting or his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv) rise to the level of "development." As we have seen, a central purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted. Also, the exclusion of "publisher" liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message.
The "development of information" therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication. [FN 18] Because Cremers did no more than select and make minor alterations to Smith's e-mail, Cremers cannot be considered the content provider of Smith's e-mail for purposes of § 230. [FN 19]
[FN 19] As other courts have pointed out, the broad immunity created by § 230 can sometimes lead to troubling results. See, e.g., Blumenthal, 992 F.Supp. at 51-52 (expressing opinion that "[i]f it were writing on a clean slate," AOL would be liable for defamation when it had editorial control over the defamatory material). For example, a service provider that cannot be held liable for posting a defamatory message may have little incentive to take such material down even if informed that the material is defamatory. One possible solution to this statutorily created problem is the approach taken by Congress in the Digital Millennium Copyright Act ("Digital Act"). The Digital Act includes immunity provisions, similar to those of the Communications Decency Act, that protect service providers from liability for content provided by third parties. The Digital Act, however, unlike the Communications Decency Act, provides specific notice, take-down, and put- back procedures that carefully balance the First Amendment rights of users with the rights of a potentially injured copyright holder. See 17 U.S.C. §§ 512(c) and (g); see also H.R.Rep. No. 105-551, at 52-62 (1998) (describing the DMCA's take-down and put-back procedures); Comm. Print, Section-By-Section Analysis of H.R. 2281, at 25-36 (Sept.1998) (same). To date, Congress has not amended § 230 to provide for similar take-down and put-back procedures.
The partial dissent does not register any disagreement with this interpretation of the definition of "information content provider" or with the observation that immunity for "publisher[s]" indicates a recognition that the immunity will extend to the selection of material supplied by others. It nonetheless simultaneously maintains that 1) a defendant who takes an active role in selecting information for publication is not immune; and 2) interactive computer service users and providers who screen the material submitted and remove offensive content are immune. See post at 8465 and n. 5. These two positions simply cannot logically coexist.
Such a distinction between deciding to publish only some of the material submitted and deciding not to publish some of the material submitted is not a viable one. The scope of the immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance.
A distinction between removing an item once it has appeared on the Internet and screening before publication cannot fly either. For one thing, there is no basis for believing that Congress intended a one-bite-at-the-apple form of immunity. Also, Congress could not have meant to favor removal of offending material over more advanced software that screens out the material before it ever appears. If anything, the goal of encouraging assistance to parents seeking to control children's access to offensive material would suggest a preference for a system in which the offensive material is not available even temporarily. The upshot is that the partial dissent's posit concerning the limitations of § 230(c) immunity simply cannot be squared with the statute's language and purposes, whatever merit it, or a variant of it, might have as a policy matter. See n. 19, supra.
In most cases our conclusion that Cremers cannot be considered a content provider would end matters, but this case presents one twist on the usual § 230 analysis: Smith maintains that he never "imagined [his] message would be posted on an international message board or [he] never would have sent it in the first place." The question thus becomes whether Smith can be said to have "provided" his e-mail in the sense intended by § 230(c). If the defamatory information is not "provided by another information content provider," then § 230(c) does not confer immunity on the publisher of the information.
"[P]rovided" suggests, at least, some active role by the "provider" in supplying the material to a "provider or user of an interactive computer service." One would not say, for example, that the author of a magazine article "provided" it to an interactive computer service provider or user by allowing the article to be published in hard copy off-line. Although such an article is available to anyone with access to a library or a newsstand, it is not "provided" for use on the Internet.
The result in the foregoing example should not change if the interactive computer service provider or user has a subscription to the magazine. In that instance, the material in question is "provided" to the "provider or user of an interactive computer service," but not in its role as a provider or user of a computer service. The structure and purpose of § 230(c)(1) indicate that the immunity applies only with regard to third-party information provided for use on the Internet or another interactive computer service. As we have seen, the section is concerned with providing special immunity for individuals who would otherwise be publishers or speakers, because of Congress's concern with assuring a free market in ideas and information on the Internet. If information is provided to those individuals in a capacity unrelated to their function as a provider or user of interactive computer services, then there is no reason to protect them with the special statutory immunity.
So, if, for example, an individual who happens to operate a website receives a defamatory "snail mail" letter from an old friend, the website operator cannot be said to have been "provided" the information in his capacity as a website service. [FN 20] Section 230(c)(1) supplies immunity for only individuals or entities acting as "provider[s]" or "user[s]" of an "interactive computer service," and therefore does not apply when it is not "provided" to such persons in their roles as providers or users.
The situation here is somewhat more complicated than our letter example, because Smith did provide his e-mail over the Internet and transmitted it to the Network, an operator of a website that is an user of an interactive computer service. Nevertheless, Smith contends that he did not intend his e- mail to be placed on an interactive computer service for public viewing.
Smith's confusion, even if legitimate, does not matter, Cremers maintains, because the § 230(c)(1) immunity should be available simply because Smith was the author of the e-mail, without more.
We disagree. Under Cremers's broad interpretation of § 230(c), users and providers of interactive computer services could with impunity intentionally post material they knew was never meant to be put on the Internet. At the same time, the creator or developer of the information presumably could not be held liable for unforeseeable publication of his material to huge numbers of people with whom he had no intention to communicate. The result would be nearly limitless immunity for speech never meant to be broadcast over the Internet.
Supplying a "provider or user of an interactive computer service" with immunity in such circumstances is not consistent with Congress's expressly stated purposes in adopting § 230. Free speech and the development of the Internet are not "promote[d]" by affording immunity when providers and users of "interactive computer service[s]" knew or had reason to know that the information provided was not intended for publication on the Internet. Quite the contrary: Users of the Internet are likely to be discouraged from sending e-mails for fear that their e-mails may be published on the web without their permission.
Such a scenario is very different from the bulletin boards that Congress had in mind when passing § 230. When a user sends a message to a bulletin board, it is obvious that by doing so, he or she will be publicly posting the message. Here, by contrast, Smith claims that he had no idea that the Network even had a listserv. His expectation, he says, was that he was simply sending a private e- mail to an organization informing it of his concern about Batzel's artwork, and, he insists, he would not have sent the message had he known it would be sent on through the listserv. Absent an incentive for service providers and users to evaluate whether the content they receive is meant to be posted, speech over the Internet will be chilled rather than encouraged. Immunizing providers and users of "interactive computer service[s]" for publishing material when they have reason to know that the material is not intended for publication therefore contravenes the Congressional purpose of encouraging the "development of the Internet."
Immunizing individuals and entities in such situations also interferes with Congress's objective of providing incentives for providers and users of interactive computer services to remove offensive material, especially obscene and defamatory speech. Far from encouraging such actions, immunizing a publisher or distributor for including content not intended for Internet publication increases the likelihood that obscene and defamatory material will be widely available. Not only will on-line publishers be able to distribute such material obtained from "hard copy" sources with impunity, but, because the content provider him or herself never intended publication, there is a greater likelihood that the distributed material will in fact be defamatory or obscene. A person is much more likely to exercise care in choosing his words when he knows that those words will be widely read. This is true not only for altruistic reasons but also because liability for defamation attaches only upon publication. In the current case, Smith claimed exactly that: He told Cremers that if he had known his e-mail would be posted, he never would have sent it. The congressional objectives in passing § 230 therefore are not furthered by providing immunity in instances where posted material was clearly not meant for publication.
At the same time, Congress's purpose in enacting § 230(c)(1) suggests that we must take great care in determining whether another's information was "provided" to a "provider or user of an interactive computer service" for publication. Otherwise, posting of information on the Internet and other interactive computer services would be chilled, as the service provider or user could not tell whether posting was contemplated. To preclude this possibility, the focus should be not on the information provider's intentions or knowledge when transmitting content but, instead, on the service provider's or user's reasonable perception of those intentions or knowledge. We therefore hold that a service provider or user is immune from liability under § 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other "interactive computer service."
It is not entirely clear from the record whether Smith "provided" the e-mail for publication on the Internet under this standard. There are facts that could have led Cremers reasonably to conclude that Smith sent him the information because he operated an Internet service. On the other hand, Smith was not a subscriber to the listserv and apparently sent the information to a different e-mail account from the one at which Cremers usually received information for publication. More development of the record may be necessary to determine whether, under all the circumstances, a reasonable person in Cremers' position would conclude that the information was sent for internet publication, or whether a triable issue of fact is presented on that issue.
We therefore vacate the district court's order denying Cremers's anti-SLAPP motion and remand to the district court for further proceedings to develop the facts under this newly announced standard and to evaluate what Cremers should have reasonably concluded at the time he received Smith's e-mail. If Cremers should have reasonably concluded, for example, that because Smith's e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the § 230(c) immunities. Under that circumstance, the posted information was not "provided" by another "information content provider" within the meaning of § 230. After making such an inquiry, the district court must then evaluate whether Batzel adequately has demonstrated a probability that she will prevail on the merits of her complaint under California's anti-SLAPP statute. [FN 21]
IV
Batzel argues that the district court erred in granting Mosler's motion for summary judgment. According to Batzel, Cremers was acting as Mosler's agent and therefore should be held vicariously liable for Cremers's alleged defamation. We reject this contention. [FN 22]
"Agency is the fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." Restatement (Third) of Agency § 1.01 (Tentative Draft); DeSuza v. Andersack, 63 Cal.App.3d 694, 699 (1976). In order for Mosler to be held vicariously liable for the torts of Cremers on a theory of agency, Mosler must have had the ability to control Cremers's activities. See, e.g., McCollum v. Friendly Hills Travel Ctr., 172 Cal.App.3d 83, 91 (1985).
Batzel failed to present any genuine issue of material fact as to whether Mosler had control over Cremers's management of the Network. The sponsorship agreement executed by Mosler and Cremers requires, in essence, that Cremers include Mosler's trademark in future editions of the Network. It does not give Mosler any right to control what is published by Cremers. The agreement states that Cremers will "maintain ownership and control of all aspects of [the Network's] content and operation." The agreement further states that Mosler "understands that the Museum Security Network is editorially independent and maintains full control of All [sic] editorial content." Cremers also posted on the Network's website a statement that Mosler "understand[s] that the [Network] must remain editorially independent and they respect that." Rather than evincing Cremers's assent to control by Mosler, these statements disclaim control. Without the element of control, Batzel's vicarious liability argument fails. See DeSuza, 63 Cal.App.3d at 699 (citations omitted) ("The right of the alleged principal to control the behavior of the alleged agent is an essential element which must be factually present in order to establish the existence of agency....").
The fact that Mosler provided Cremers with financial support does not support an inference that Mosler possessed practical control of Cremers's editorial content. Sponsorship alone is insufficient to render the sponsor the guarantor of the truth of all statements made in a publication. See Matson v. Dvorak, 40 Cal.App. 4th 539, 549 (1995) (holding that a party whose "only contribution to a political campaign is financial, and who is not involved in the preparation, review or publication of campaign literature, cannot be subjected to liability in a defamation action for statements contained in that literature").
We likewise reject the argument that Mosler's continued sponsorship of the Network after Cremers published Smith's statements should give rise to liability. Although a principal is liable when it ratifies an originally unauthorized tort, [FN 23] the principal-agent relationship is still a requisite, and ratification can have no meaning without it. Because Cremers was not acting as Mosler's agent at the time he published Smith's statements, Mosler's continued funding of the Network did not amount to ratification of the tort.
The district court accordingly did not err in ruling that Mosler cannot be held vicariously liable for Cremers' actions because there was no principal- agent relationship between Mosler and Cremers. We affirm the district court's grant of summary judgment in favor of Mosler.
Costs on appeal are awarded to Mosler. All other parties are to bear their own costs.
VACATED IN PART, AFFIRMED IN PART, AND REMANDED.
GOULD, J., concurring in part, dissenting in part:
I respectfully dissent from the majority's analysis of the statutory immunity from libel suits created by § 230 of the Communications Decency Act (CDA). [FN 1] The majority gives the phrase "information provided by another" an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended. Under the majority's interpretation of § 230, many persons who intentionally spread vicious falsehoods on the Internet will be immune from suit. This sweeping preemption of valid state libel laws is not necessary to promote Internet use and is not what Congress had in mind.
Congress in 1996 was worried that excessive state-law libel lawsuits would threaten the growth of the Internet. Congress enacted the CDA, which immunizes "provider[s ] or user[s]" of "interactive computer service[s]" from civil liability for material disseminated by them but "provided by another information content provider." 47 U.S.C. § 230(c). Under the CDA, courts must treat providers or users of interactive computer services differently from other information providers, such as newspapers, magazines, or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others. Congress believed this special treatment would "promote the continued development of the Internet and other interactive computer services" and "preserve the vibrant and competitive free market" for such services, largely "unfettered by Federal or State regulation." 47 U.S.C. § 230(b)(1)-(2).
The statute states:
47 U.S.C. § 230(c)(1). Three elements are thus required for § 230 immunity: (1) the defendant must be a provider or user of an "interactive computer service"; (2) the asserted claims must treat the defendant as a publisher or speaker of information; and (3) the challenged communication must be "information provided by another information content provider." [FN 2] The majority and I agree on the importance of the CDA and on the proper interpretation of the first and second elements. We disagree only over the third element. [FN 3]
[FN 2] An "information content provider" is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(e)(3).
[FN 3] This case may be the first to pose the question of whether CDA immunity extends to a user or
provider of an Internet newsletter or "listserv." CDA immunity should not depend, however, on rigid
characterizations of particular services. As the amicus explains, there are many different kinds of listservs,
each relying on different technology. There also are many kinds of Internet "bulletin boards," "chat
rooms," "moderated listservs," "unmoderated listservs," and "e-mail newsletters." Because the contours of
these categories are not clear, an approach that determined CDA immunity based on a technology's
classification into one of these categories might cause considerable mischief. Rather than categorical
rules, what is needed is an inquiry tailored to each case. CDA immunity should depend not on how a
defendant's technology is classified, but on the defendant's conduct.
The majority holds that information is "provided by another" when "a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other 'interactive computer service.' " Supra at 8456. In other words, whether information is "provided" depends on the defendant's perception of the author's intention. Nothing in the statutory language suggests that "provided" should be interpreted in this convoluted and unworkable fashion.
Under the majority's rule, a court determining whether to extend CDA immunity to a defendant must determine whether the author of allegedly defamatory information--a person who often will be beyond reach of the court's process or, worse, unknown -- intended that the information be distributed on the Internet. In many cases, the author's intention may not be discernable from the face of the defamatory communication. Even people who want an e-mail message widely disseminated may not preface the message with words such as "Please pass it on." Moreover, the fact-intensive question of the author's intent is particularly unsuited for a judge's determination before trial, when the immunity question will most often arise.
The majority's rule will be incomprehensible to most citizens, who will be unable to plan their own conduct mindful of the law's requirements. Laypersons may not grasp that their tort liability depends on whether they reasonably should have known that the author of a particular communication intended that it be distributed on the Internet. Laypersons certainly will not grasp why this should be the case, as a matter of justice, morality, or politics. Those who receive a potentially libelous e-mail message from another person would seldom wonder, when deciding whether to forward the message to others, "Did the author of this defamatory information intend that it be distributed on the Internet?" [FN 4] However, those who receive a potentially libelous e-mail almost certainly would wonder, "Is it appropriate for me to spread this defamatory message?" By shifting its inquiry away from the defendant's conduct, the majority has crafted a rule that encourages the casual spread of harmful lies. The majority has improvidently crafted a rule that is foreign to the statutory text and foreign to human experience.
The majority rule licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity. So long as the defamatory information was written by a person who wanted the information to be spread on the Internet (in other words, a person with an axe to grind), the rumormonger's injurious conduct is beyond legal redress. Nothing in the CDA's text or legislative history suggests that Congress intended CDA immunity to extend so far. Nothing in the text, legislative history, or human experience would lead me to accept the notion that Congress in § 230 intended to immunize users or providers of interactive computer services who, by their discretionary decisions to spread particular communications, cause trickles of defamation to swell into rivers of harm.
The problems caused by the majority's rule all would vanish if we focused our inquiry not on the author's intent, but on the defendant's acts, as I believe Congress intended. We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication. If the defendant took an active role in selecting information for publication, the information is no longer "information provided by another" within the meaning of § 230. We should draw this conclusion from the statute's text and purposes.
A person's decision to select particular information for distribution on the Internet changes that information in a subtle but important way: it adds the person's imprimatur to it. The recipient of information that has been selected by another person for distribution understands that the information has been deemed worthy of dissemination by the sender. Information that bears such an implicit endorsement [FN 5] is no longer merely the "information provided by" the original sender. 47 U.S.C. § 230(c)(1). It is information transformed. It is information bolstered, strengthened to do more harm if it is wrongful. A defendant who has actively selected libelous information for distribution thus should not be entitled to CDA immunity for disseminating "information provided by another."
My interpretation of § 230 is consistent with the CDA's legislative history. Congress understood that entities that facilitate communication on the Internet -- particularly entities that operate e-mail networks, "chat rooms," "bulletin boards," and "listservs" -- have special needs. The amount of information communicated through such services is staggering. Millions of communications are sent daily. It would be impossible to screen all such communications for libelous or offensive content. Faced with potential liability for each message republished by their services, interactive computer service users and providers might choose to restrict severely the number and type of messages posted. The threat of tort liability in an area of such prolific speech would have an obvious chilling effect on free speech and would hamper the new medium.
These policy concerns have force when a potential defendant uses or provides technology that enables others to disseminate information directly without intervening human action. These policy concerns lack force when a potential defendant does not offer users this power of direct transmission. If a potential defendant employs a person to screen communications to select some of them for dissemination, it is not impossible (or even difficult) for that person to screen communications for defamatory content. Immunizing that person or the person's employer from liability would not advance Congress's goal of protecting those in need of protection.
If a person is charged with screening all communications to select some for dissemination, that person can decide not to disseminate a potentially offensive communication. Or that person can undertake some reasonable investigation. Such a process would be relatively inexpensive and would reduce the serious social costs caused by the spread of offensive and defamatory communications.
Under my interpretation of § 230, a company that operates an e-mail network would be immune from libel suits arising out of e-mail messages transmitted automatically across its network. Similarly, the owner, operator, organizer, or moderator of an Internet bulletin board, chat room, or listserv would be immune from libel suits arising out of messages distributed using that technology, provided that the person does not actively select particular messages for publication.
On the other hand, a person who receives a libelous communication and makes the decision to disseminate that messages to others -- whether via e-mail, a bulletin board, a chat room, or a listserv -- would not be immune.
My approach also would further Congress's goal of encouraging "self-policing" on the Internet. Congress decided to immunize from liability those who publish material on the Internet, so long as they do not actively select defamatory or offensive material for distribution. As a result, those who remove all or part of an offensive information posted on (for example) an Internet bulletin board are immune from suit. [FN 6] Those who employ blocking or filtering technologies that allow readers to avoid obscene or offensive materials also are immune from suit.
[FN 6] As long as an interactive computer service permits users to post messages directly in the first instance, the messages are "information provided by another," and the user or provider is entitled to CDA immunity, even if the provider later removes all or part of the offensive communication. An important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services. Zeran, 129 F.3d at 331. Preserving CDA immunity, even when a service user or provider retains the power to delete offensive communications, ensures that such entities are not punished for regulating themselves.
On the other hand, Congress decided not to immunize those who actively select defamatory or offensive information for distribution on the Internet. Congress thereby ensured that users and providers of interactive computer services would have an incentive not to spread harmful gossip and lies intentionally.
Congress wanted to ensure that excessive government regulation did not slow America's expansion into the exciting new frontier of the Internet. But Congress did not want this new frontier to be like the Old West: a lawless zone governed by retribution and mob justice. The CDA does not license anarchy. A person's decision to disseminate the rankest rumor or most blatant falsehood should not escape legal redress merely because the person chose to disseminate it through the Internet rather than through some other medium. A proper analysis of § 230, which makes a human being's decision to disseminate a particular communication the touchstone of CDA immunity, reconciles Congress's intent to deregulate the Internet with Congress's recognition that certain beneficial technologies, which promote efficient global communication and advance values enshrined in our First Amendment, are unique to the Internet and need special protection. Congress wanted to preserve the Internet and aid its growth, but not at all costs. Congress did not want to remove incentives for people armed with the power of the Internet to act with reasonable care to avoid unnecessary harm to others.
In this case, I would hold that Cremers is not entitled to CDA immunity because Cremers actively selected Smith's e-mail message for publication. Whether Cremers's Museum Security Network is characterized as a "moderated listserv," an "e-mail newsletter," or otherwise, it is certain that the Network did not permit users to disseminate information to other users directly without intervening human action. According to Cremers, "To post a response or to provide new information, the subscriber merely replies to the listserv mailing and the message is sent directly to Cremers, who includes it in the listserv with the subsequent distribution." (emphasis added).
This procedure was followed with respect to Smith's e-mail message accusing Batzel of owning art stolen by a Nazi ancestor. Smith transmitted the message to one e-mail account, from which Cremers received it. Cremers forwarded the message to a second e-mail account. He pasted the message into a new edition of the Museum Security Network newsletter. He then sent that newsletter to his subscribers and posted it on the Network's website. Cremers's decision to select Smith's e-mail message for publication effectively altered the messages's meaning, adding to the message the unstated suggestion that Cremers deemed the message worthy of readers' attention. Cremers therefore did not merely distribute "information provided by another," and he is not entitled to CDA immunity.
From the record before us, we have no reason to think that Cremers is not well-meaning or that his concerns about stolen artwork are not genuine. Nor on this appeal do we decide whether his communications were defamatory or harmful in fact. We deal only with immunity. And, in my view, there is no immunity under the CDA if Cremers made a discretionary decision to distribute on the Internet defamatory information about another person, without any investigation whatsoever. If Cremers made a mistake, we should not hold that he may escape all accountability just because he made that mistake on the Internet.
I respectfully dissent.