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The U.S. Court of Appeals for the 9th Circuit waded into cyberspace late last month to set liability for Web site operators who put libelous information on the Internet. But defining “content provider” under the Communications Decency Act of 1996 isn’t as easy as it might seem. In doing so, a divided court established a new test for judges to apply. The case began when Ton Cremers, responsible for the security of countless priceless Rembrandts at the famed Dutch Rijksmuseum, received an intriguing e-mail in 1999 from a North Carolina handyman. The tipster, Robert Smith, said he’d done some work on a house occupied by a lawyer named Ellen Batzel. Smith claimed he overheard Batzel say she was the descendant of “one of Adolf Hitler’s right-hand men,” and that furthermore, her walls were decorated with what looked to be old European paintings. Cremers runs a Web site called Museum-Security.org, which tracks thefts of great artwork and tries to help find them. The site helps track down missing art by sending clips of e-mails, articles, and other information to museum directors, law enforcement personnel, and others who sign up for Cremers’ listserv. Batzel says she isn’t a Nazi heir, but had clients in the art world, both in North Carolina and Los Angeles, where she now resides. She says Smith was retaliating for a contract dispute and was upset that she wouldn’t pass his amateur screenplay around to her friends in Hollywood. She did have some valuable works of art, but since her house was being renovated, they were wrapped in bubble wrap and kept in the garage. “That’s hardly where you put the Matisse and the Renoir,” says her lawyer, Howard Fredman of Los Angeles’ Fredman/Lieberman. Batzel sued Cremers for libel. The June 24 decision by a divided three-judge panel announced a new rule for those claims: Web site operators can be sued only for posting information that a reasonable person would have known wasn’t intended for publication. “There are facts that could have led Cremers reasonably to conclude that Smith sent him the information because he operated an Internet service,” Judge Marsha Berzon wrote. The case was remanded to determine whether “a reasonable person in Cremers’ position would conclude that the information was sent for Internet publication, or whether a triable issue is presented on that issue.” Berzon was joined by Senior Judge William Canby Jr., while Judge Ronald Gould dissented. “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,” Gould wrote. “If Cremers made a mistake, we should not hold that he may escape all accountability just because he made that mistake on the Internet.” The CDA bars suits against “providers and users of an interactive computer service” when that information is provided by another content provider. Without significantly altering or editing the Smith e-mail, Berzon wrote, Cremers could not properly be labeled a content provider. As case law has developed over the CDA, courts have usually held that Internet service providers and bulletin board hosts cannot be sued for libel. The individual users, however, can. Batzel v. Cremers, 03 C.D.O.S. 5465, falls somewhere in the middle. “We are encouraged by the 9th Circuit’s ruling today,” says Eric Brown, an attorney at Latham & Watkins in Los Angeles who is representing Cremers pro bono. Fredman says his client, who sought Gould’s broader interpretation of liability, may consider seeking en banc review. Both he and Batzel, however, are upset that the court did not go into greater detail to document their rebuttals of the claims of Batzel’s ancestry. “Part of the problem is that I was run out of North Carolina with this crap, and I would like an opinion that says that Bob Smith never heard me say I was Himmler’s granddaughter,” says Batzel, who added that she lost clients over the fabrication. Nor is her art collection a bunch of masterworks. “You’ve never seen me in Art + Auction smiling.” Jason Hoppin is a reporter at The Recorder, the American Lawyer Media newspaper in San Francisco.

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