FITUG e.V. Förderverein Informationstechnik und Gesellschaft

FC: Mailing list operators not liable for libel, Public

------- 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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