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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Ellen L. Batzel v. Ton Cremers, et al.

333 F.3d 1018, No. 01-56380 (9th Cir., June 24, 2003) petition rehearing and rehearing en banc, denied, 351 F.3d 904 (9th Cir., December 3, 2003)

In this defamation suit, the Ninth Circuit Court of Appeals holds that the operator of a listserv and website is a user of interactive computer services entitled to the protections of the Communications Decency Act ("CDA") against liability arising out of his publication of information provided by another information provider.  Because, however, the author of the information at issue claimed he did not mean for the defendant operator of the listserv to publish it, the Ninth Circuit remanded the case to the District Court for a determination as to whether the listserv operator was entitled to immunity under the CDA in this particular case.  Such immunity should be granted, held the Ninth Circuit, if the information in question was provided to the listserv operator by a third party under circumstances in which a reasonable person would conclude that the third party provided the information for publication on the Internet.  The Ninth Circuit accordingly vacated so much of the District Court's decision which denied defendant's motion to dismiss this defamation action under California's Anti-SLAPP statute, which motion was to be reconsidered on remand.  The Ninth Circuit also affirmed the District Court's rejection of plaintiff's defamation claims against Mosler, which were predicated solely on its placement of ads on the website at issue.

Defendant Robert Smith sent an e-mail to the Museum Security Network ("Network") in which he stated that he "believe[d]" that plaintiff Ellen Batzel had in her home "paintings [which] were looted during World War II and are the rightful legacy of the Jewish people."  This e-mail was received by Ton Cremers, the sole operator of the Network, and then director of Security at Amsterdam's Rijksmuseum.

Cremers, on behalf of the Network, operates a listserv and website discussing stolen art, which publications are read by hundreds of museum security officials, insurance agents and law enforcement personnel.  Cremers periodically distributes to this listserv an electronic document consisting of e-mails he has received, his own comments, and excerpts from news articles about stolen art.  Cremers does not publish all of the e-mails he receives from third parties - rather, he only includes those he deems worthy.

Cremers included Smith's e-mail, with some minor word changes, in such an electronic document.  This document was both distributed to the Network's listserv, and posted on its website.

Upon discovering this publication, plaintiff Batzel brought suit against Cremers, Smith and Mosler, Inc. ("Mosler'), charging them, inter alia, with defamation.  The suit against Mosler was predicated on its purchase of advertising on the Network website.  This transaction allegedly made Cremers Mosler's agent, and accordingly made Mosler liable for statements published by Cremers on Network's site.

Cremers moved to dismiss the lawsuit under California's Anti-SLAPP statute, which is designed to protect against lawsuits brought to "deter [ ] citizens from exercising their political or legal rights …".  Under the statute, the defendant must show that the lawsuit "arises from an act by the defendant made in connection with a public issue in furtherance of the defendant's right to free speech under the United States or California Constitution."  If such a showing is made, the plaintiff must demonstrate that he has a reasonable probability of succeeding on his claim to be able to pursue it.

The District Court denied Cremers' Anti-SLAPP motion to dismiss.  In reaching this result, the District Court found that Cremers was not immune from plaintiff's defamation claim under the Communications Decency Act ("CDA").  The Ninth Circuit disagreed, vacated the District Court's decision, and remanded for further consideration.

Under Section 230(c)(1) of the CDA, "no provider or user of  an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

To qualify for the protection of the CDA, the defendant must be a provider or user of "an interactive computer service."  The statute defines an "interactive computer service" 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.

Disagreeing with the District Court, the Ninth Circuit held that Cremers, in his capacity as an operator of a listserv and website, was a "user of an interactive computer service" who qualified for the protections of the CDA.  Said the Court:

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.  § 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.

Cremers qualified for such immunity notwithstanding the fact that Cremers published only some of the emails he received to his listserv, or made slight modifications to Smith's email before including it in his own communication to listserv members.  Said the Ninth Circuit:

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.  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.

However, to be entitled to the protection of the CDA, the information must be "provided by another information content provider."  Because Smith claimed that he did not intend for Cremers to publish his email on a website or to a listerv, and would not have sent it to Cremers if he had known he would have done so, the Ninth Circuit remanded the case to the District Court for its consideration as to whether the information was provided to Cremers by a third party within the meaning of the CDA.  The District Court was instructed not to base this determination on its findings as to the actual intentions of Smith, the author of the information in question.  Rather, it was to base its determination on its conclusion as to whether a reasonable listserv or website operator, standing in Cremers' shoes, would have believed the information was provided to him for republication.  Said the Court:

[T]he 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."

The Ninth Circuit did affirm so much of the District Court's decision which granted Mosler's motion for summary judgment.  Plaintiff's claim against Mosler was predicated on plaintiff's contention that Cremers was Mosler's agent when he published the Network website.  For such a relationship to exist, however, the "agent shall act on the principal's behalf and subject to the principal's control."  Because there was no evidence that Cremers' actions were subject to Mosler's control, the Court affirmed the dismissal of the claims against it.  In reaching this result, the Ninth Circuit relied on the fact that the agreement pursuant to which Mosler purchased advertising on Network's website expressly reserved to Network the ownership and control of the content of the website.

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