[FYI] (Fwd) FC: Mailing list operators not liable for libel, Public

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Thu, 16 May 2002 23:05:43 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Mailing list operators not liable for libel, Public Citizen
 	argues
Send reply to:  	declan@well.com


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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




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