I have a friend who is threatened to be sued for reporting an accurate
incident on a weblog. A teacher in a class full of students said some
things he perhaps preferred he didn't say. My friend recorded what he
said on her weblog. And now he wants to sue him for slander.

Because she can provide witnesses that what the teacher claimed to do
he actually did, this would seem to an open and shut case, that's
almost ridiculous.

My friend is worried about this situation. What can I advise him to do
to avoid any problems?

CuriousBorg wrote:
I have a friend who is threatened to be sued for reporting an accurate incident on a weblog. A teacher in a class full of students said some things he perhaps preferred he didn't say. My friend recorded what he said on her weblog. And now he wants to sue him for slander.
Because she can provide witnesses that what the teacher claimed to do he actually did, this would seem to an open and shut case, that's almost ridiculous.
My friend is worried about this situation. What can I advise him to do to avoid any problems?

Sure he can sue. Will he get any one to care?
Tell your friend [it's always a friend] to sit back and relax and wait for
the court papers to arrive then hire an attorney.
That will probably happen about the 12th of never.

However, "free speech" does not give every one the right to go posting
hearsay statements on an internet site because it's to easy to do.
Was your friend an actual witness to what was said?
if not, that is hearsay and could be very well be slander. Actually, it
would be libel.

Then again, if the wording of the site is such that appears to be an opinion
of the words "allegedly stated by" said person, then there might not be a
case.
Because [sic] "Don't blame me, I'm just quoting".
Same as a reporter stating what he was told by "alleged witnesses" of an
event.
He doesn't know, he wasn't there. He's just quoting the witnesses.

"According to witnesses who were present at the time"
That statement would basically let the writer off the hook.

Wording plays a big role in libel cases.

Be careful of how it's all stated and it should not get to court.

"Richard" <anonymous@127.000> wrote in message
news:bvnek6023ha@enews3.newsguy.com... CuriousBorg wrote: I have a friend who is threatened to be sued for reporting an accurate incident on a weblog. A teacher in a class full of students said some things he perhaps preferred he didn't say. My friend recorded what he said on her weblog. And now he wants to sue him for slander. Because she can provide witnesses that what the teacher claimed to do he actually did, this would seem to an open and shut case, that's almost ridiculous. My friend is worried about this situation. What can I advise him to do to avoid any problems? Sure he can sue. Will he get any one to care? Tell your friend [it's always a friend] to sit back and relax and wait for the court papers to arrive then hire an attorney. That will probably happen about the 12th of never. However, "free speech" does not give every one the right to go posting hearsay statements on an internet site because it's to easy to do. Was your friend an actual witness to what was said? if not, that is hearsay and could be very well be slander. Actually, it would be libel.

PLEASE stop posting legal advice about subjects of which you know absolutely
nothing.

Truth is a defense to defamation. Period. It doesn't matter whether the
poster was an "actual witness" or not.

Hearsay is an out-of-court statement admitted to prove the truth of the
matter asserted therein. Hearsay has absolutely nothing, repeat, NOTHING to
do with the OP's discussion of the situation.

If you want to play lawyer, go to law school and get licensed. Otherwise,
stop giving people erroneous advice.

What is it with you?

Then again, if the wording of the site is such that appears to be an
opinion of the words "allegedly stated by" said person, then there might not be a case. Because [sic] "Don't blame me, I'm just quoting". Same as a reporter stating what he was told by "alleged witnesses" of an event. He doesn't know, he wasn't there. He's just quoting the witnesses. "According to witnesses who were present at the time" That statement would basically let the writer off the hook. Wording plays a big role in libel cases. Be careful of how it's all stated and it should not get to court.

On Tue, 3 Feb 2004 00:22:44 -0600, "Richard" <anonymous@127.000> in
misc.legal, wrote the following:
Then again, if the wording of the site is such that appears to be an opinionof the words "allegedly stated by" said person, then there might not be acase.Because [sic] "Don't blame me, I'm just quoting".Same as a reporter stating what he was told by "alleged witnesses" of anevent.He doesn't know, he wasn't there. He's just quoting the witnesses."According to witnesses who were present at the time"That statement would basically let the writer off the hook.Wording plays a big role in libel cases.

Reporting even "alleged" defamatory remarks can get the "quoter" in big
trouble if he/she does not take due care to ascertain the remarks were
true. Informing the reader that it is someone else's allegation (and
you are just repeating it) is no defense at all and for the purposes of
defamation, a hearsay statement is the same as a direct statement.

Each repetition of a defamatory remark is a new injury. This means that
one can obtain damages for each time the defamatory statement is
repeated in publication, as it passes from one party to another, if the
original party making the allegation is included and the repeater relies
totally upon that person's statement as the truth. In an action for
defamation, the plaintiff must prove simply the defamatory words were
uttered in an effort to harm their reputation.

It is not hearsay (in fact defamation is not covered by the hearsay rule
in most US states and internationally) because the plaintiff is not
relying on their truth but simply exhibiting the fact that the words
were written. Often the plaintiff is seeking to show that the words are
untrue.

So, Z publishing that 'X said this about Y,' with such statement is
presented as the truth of the matter, and Y is harmed by the statement,
which is shown to be false and/or distributed with malice/reckless
disregard for the truth, would give a cause of action by Y against not
only X but also against Z for not ascertaining the truth or falsity of
the statement before publication.

These rules are well-known to the press and other media. Therefore, any
web publisher (such as the 'friend's' weblog) had better consider that
defamation rules also attach to his/her publication as well (as noted in
several court decisions). The only exception would be if the
publication was made under qualified privilege (such as reporting of a
court proceeding, etc.), which doesn't appear to be the case here.


--
Katherine Griffis-Greenberg, J.D.

DISCLAIMER:

Not a practicing attorney, and no attorney-client relationship
is created. This response is for discussion purposes only. It
isn't meant to be legal advice. If you wish legal advice, seek
out an attorney in your own state who is familar with your
state's laws and applications thereof.

PTRAVEL wrote:

"Richard" <anonymous@127.000> wrote in message news:bvnek6023ha@enews3.newsguy.com... CuriousBorg wrote: I have a friend who is threatened to be sued for reporting an accurate incident on a weblog. A teacher in a class full of studentssaid some things he perhaps preferred he didn't say. My friendrecorded what he said on her weblog. And now he wants to sue him forslander. Because she can provide witnesses that what the teacher claimed to do he actually did, this would seem to an open and shut case, that's almost ridiculous. My friend is worried about this situation. What can I advise him to do to avoid any problems? Sure he can sue. Will he get any one to care? Tell your friend [it's always a friend] to sit back and relax and wait for the court papers to arrive then hire an attorney. That will probablyhappen about the 12th of never. However, "free speech" does not giveevery one the right to go posting hearsay statements on an internet sitebecause it's to easy to do. Was your friend an actual witness to what wassaid? if not, that is hearsay and could be very well be slander.Actually, it would be libel.
PLEASE stop posting legal advice about subjects of which you know absolutely nothing.
Truth is a defense to defamation. Period. It doesn't matter whether the poster was an "actual witness" or not.
Hearsay is an out-of-court statement admitted to prove the truth of the matter asserted therein. Hearsay has absolutely nothing, repeat, NOTHING to do with the OP's discussion of the situation.
If you want to play lawyer, go to law school and get licensed. Otherwise, stop giving people erroneous advice.
What is it with you?

This is a worldwide discussion group concerning matters of any legal type.
There is no mandatory obligation one must have a degree in law to
participate.
As I state many times, if you need legal advice, hire an attorney.
This is not legal advice and never has been.

Answers I give are designed mainly to get the person asking, to think and
act for themselves.
When possible, guiding in hopefully, the right direction.

I do not claim to be an attorney as many do here.
If you feel my answers are wrong, feel free to post what you believe is
correct.

Katherine Griffis-Greenberg wrote:
On Tue, 3 Feb 2004 00:22:44 -0600, "Richard" <anonymous@127.000> in misc.legal, wrote the following:
Then again, if the wording of the site is such that appears to be anopinion of the words "allegedly stated by" said person, then there might not be a case. Because [sic] "Don't blame me, I'm just quoting". Same as a reporter stating what he was told by "alleged witnesses" of an event. He doesn't know, he wasn't there. He's just quoting the witnesses. "According to witnesses who were present at the time" That statement would basically let the writer off the hook. Wording plays a big role in libel cases.
Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement.
Each repetition of a defamatory remark is a new injury. This means that one can obtain damages for each time the defamatory statement is repeated in publication, as it passes from one party to another, if the original party making the allegation is included and the repeater relies totally upon that person's statement as the truth. In an action for defamation, the plaintiff must prove simply the defamatory words were uttered in an effort to harm their reputation.
It is not hearsay (in fact defamation is not covered by the hearsay rule in most US states and internationally) because the plaintiff is not relying on their truth but simply exhibiting the fact that the words were written. Often the plaintiff is seeking to show that the words are untrue.
So, Z publishing that 'X said this about Y,' with such statement is presented as the truth of the matter, and Y is harmed by the statement, which is shown to be false and/or distributed with malice/reckless disregard for the truth, would give a cause of action by Y against not only X but also against Z for not ascertaining the truth or falsity of the statement before publication.
These rules are well-known to the press and other media. Therefore, any web publisher (such as the 'friend's' weblog) had better consider that defamation rules also attach to his/her publication as well (as noted in several court decisions). The only exception would be if the publication was made under qualified privilege (such as reporting of a court proceeding, etc.), which doesn't appear to be the case here.


Thank you for the lesson. But that is not my purpose in my posts.
I lean towards pointing out there are questions which must be asked and
answered before one can truly call it libel per se.
Hopefully, the poster will understand that there is more out there for HIM
to acquire the knowledge on.
Then, that person may fully understand what is, and what is not, at stake.

If you were a school teacher, do you just hand your students all they need
to know without them doing anything?
How do we learn? We learn by finding out all we can about the subject at
hand and applying it.

One college professor I had once said, he did not teach that you had to know
every thing in your head all the time, but it was more important that you
knew where to find that information when needed.

After all, trial lawyers can't possibly know every law in the state, and
every court case connected to it right?
Even though hollywood says they can.

"Richard" <anonymous@127.000> wrote in message
news:bvnjld02a1q@enews3.newsguy.com... PTRAVEL wrote: "Richard" <anonymous@127.000> wrote in message news:bvnek6023ha@enews3.newsguy.com... CuriousBorg wrote:> I have a friend who is threatened to be sued for reporting an> accurate incident on a weblog. A teacher in a class full of
students>said some things he perhaps preferred he didn't say. My friend>recorded what he said on her weblog. And now he wants to sue him for>slander.> Because she can provide witnesses that what the teacher claimed to
do> he actually did, this would seem to an open and shut case, that's> almost ridiculous.> My friend is worried about this situation. What can I advise him to> do to avoid any problems? Sure he can sue. Will he get any one to care? Tell your friend [it's always a friend] to sit back and relax and wait for the court papers to arrive then hire an attorney. That will
probablyhappen about the 12th of never. However, "free speech" does not giveevery one the right to go posting hearsay statements on an internet
sitebecause it's to easy to do. Was your friend an actual witness to what
wassaid? if not, that is hearsay and could be very well be slander.Actually, it would be libel. PLEASE stop posting legal advice about subjects of which you know absolutely nothing. Truth is a defense to defamation. Period. It doesn't matter whether
the poster was an "actual witness" or not. Hearsay is an out-of-court statement admitted to prove the truth of the matter asserted therein. Hearsay has absolutely nothing, repeat,
NOTHING to do with the OP's discussion of the situation. If you want to play lawyer, go to law school and get licensed. Otherwise, stop giving people erroneous advice. What is it with you? This is a worldwide discussion group concerning matters of any legal type. There is no mandatory obligation one must have a degree in law to participate.

Of course not. The problem is, you speak as if you're an authority and
you're almost always wrong. This has nothing to do with law degrees, but
your insistence on inserting yourself into conversations about which you
have no knowledge, much less expertise, and simply making up answers that
have no basis in anything. Remember "Cliff the Mailman" on Cheers?

If you were simply providing misinformation for its own sake, there wouldn't
be much of a problem. However, there's too much chance that someone will
read what you say, believe it and rely on it.
As I state many times, if you need legal advice, hire an attorney. This is not legal advice and never has been.

I'm not disputing whether you have a RIGHT to say what you do. That's
another thread. My only point is, since (1) you have no education in the
law, or other qualification that would result in familiarity with the law,
and (2) you are so often wrong, why do you persist in posting these nonsense
answers?
Answers I give are designed mainly to get the person asking, to think and act for themselves. When possible, guiding in hopefully, the right direction.

A discussion of hearsay in response to a question about defamation is not
guiding anyone in the right direction, nor will it get a person thinking
about the issues which should concern them.
I do not claim to be an attorney as many do here. If you feel my answers are wrong, feel free to post what you believe is correct.

I don't give legal advice over the internet, and never to non-clients. I
post in response to your advice only when other attorneys haven't done the
same already, and only in the interest of not having innocent and naive
people mislead to their detriment.

>Subject: Re: Internet free speech legal questionFrom: "Richard" anonymous@127.000Date: 2/3/2004 7:00 AM Pacific Standard TimeMessage-id: <bvocu901hgl@enews2.newsguy.com> Katherine Griffis-Greenberg wrote: On Tue, 3 Feb 2004 00:22:44 -0600, "Richard" <anonymous@127.000> in misc.legal, wrote the following:Then again, if the wording of the site is such that appears to be anopinion of the words "allegedly stated by" said person, then there might not be a case. Because [sic] "Don't blame me, I'm just quoting". Same as a reporter stating what he was told by "alleged witnesses" of an event. He doesn't know, he wasn't there. He's just quoting the witnesses. "According to witnesses who were present at the time" That statement would basically let the writer off the hook. Wording plays a big role in libel cases. Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement. Each repetition of a defamatory remark is a new injury. This means that one can obtain damages for each time the defamatory statement is repeated in publication, as it passes from one party to another, if the original party making the allegation is included and the repeater relies totally upon that person's statement as the truth. In an action for defamation, the plaintiff must prove simply the defamatory words were uttered in an effort to harm their reputation.

If they are false. Truth is always a defense to allegations of defamation.
There are some people who construe everything said about them that is critical
as "defamation" and anybody with the means to do so can begin a defamation
action. But to allege malice is not sufficient--for that very reason. A
person cannot allege that he has been damaged by the truth (where Freedom of
Speech exists) unless he can somehow prove "invasion of privacy".
It is not hearsay (in fact defamation is not covered by the hearsay rule in most US states and internationally) because the plaintiff is not relying on their truth but simply exhibiting the fact that the words were written. Often the plaintiff is seeking to show that the words are untrue.

They had better seek to show that.
So, Z publishing that 'X said this about Y,' with such statement is presented as the truth of the matter, and Y is harmed by the statement, which is shown to be false and/or distributed with malice/reckless disregard for the truth, would give a cause of action by Y against not only X but also against Z for not ascertaining the truth or falsity of the statement before publication. These rules are well-known to the press and other media. Therefore, any web publisher (such as the 'friend's' weblog) had better consider that defamation rules also attach to his/her publication as well (as noted in several court decisions). The only exception would be if the publication was made under qualified privilege (such as reporting of a court proceeding, etc.), which doesn't appear to be the case here.

Added to that, there is the problem of obtaining jurisdiction over the
defendant.
My guess is that there are as many "reckless"( lacking merit) defamation
actions and SLAPP suits as there are those which are warranted by actual damage
to the plaintiff.

Disclaimer: I am not an attorney. This is for discussion purposes only and
should not be construed as legal advice. For legal advice, it is best to
consult an attorney.


"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html

On Tue, 3 Feb 2004 09:00:05 -0600, "Richard" <anonymous@127.000>
wrote:
Katherine Griffis-Greenberg wrote: On Tue, 3 Feb 2004 00:22:44 -0600, "Richard" <anonymous@127.000> in misc.legal, wrote the following:Then again, if the wording of the site is such that appears to be anopinion of the words "allegedly stated by" said person, then there might not be a case. Because [sic] "Don't blame me, I'm just quoting". Same as a reporter stating what he was told by "alleged witnesses" of an event. He doesn't know, he wasn't there. He's just quoting the witnesses. "According to witnesses who were present at the time" That statement would basically let the writer off the hook. Wording plays a big role in libel cases. Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement. Each repetition of a defamatory remark is a new injury. This means that one can obtain damages for each time the defamatory statement is repeated in publication, as it passes from one party to another, if the original party making the allegation is included and the repeater relies totally upon that person's statement as the truth. In an action for defamation, the plaintiff must prove simply the defamatory words were uttered in an effort to harm their reputation. It is not hearsay (in fact defamation is not covered by the hearsay rule in most US states and internationally) because the plaintiff is not relying on their truth but simply exhibiting the fact that the words were written. Often the plaintiff is seeking to show that the words are untrue. So, Z publishing that 'X said this about Y,' with such statement is presented as the truth of the matter, and Y is harmed by the statement, which is shown to be false and/or distributed with malice/reckless disregard for the truth, would give a cause of action by Y against not only X but also against Z for not ascertaining the truth or falsity of the statement before publication. These rules are well-known to the press and other media. Therefore, any web publisher (such as the 'friend's' weblog) had better consider that defamation rules also attach to his/her publication as well (as noted in several court decisions). The only exception would be if the publication was made under qualified privilege (such as reporting of a court proceeding, etc.), which doesn't appear to be the case here.Thank you for the lesson.

But you didn't learn it. She was simply reciting the general law
accurately. She was compelled to do so because you were misleading
the poster by acting like you know something.
But that is not my purpose in my posts.I lean towards pointing out there are questions which must be asked andanswered before one can truly call it libel per se.

Do you know that "libel per se" is a term of legal art, and doesn't
just mean "as such" in the context of a discussion of defamation?
Hopefully, the poster will understand that there is more out there for HIMto acquire the knowledge on.

Not just "more." He now has to undo the misinformation that you
posted.
Then, that person may fully understand what is, and what is not, at stake.If you were a school teacher, do you just hand your students all they needto know without them doing anything?How do we learn? We learn by finding out all we can about the subject athand and applying it.One college professor I had once said, he did not teach that you had to knowevery thing in your head all the time, but it was more important that youknew where to find that information when needed.

Well, he ain't going to find it from you.
After all, trial lawyers can't possibly know every law in the state, andevery court case connected to it right?

"Knowing the law" isn't what lawyers are about.

- Jon Beaver

Katherine Griffis-Greenberg wrote:
Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement.

At least in some defamation cases in California, it has been
"established" (law of the case), that quoting a Usenet message
elsewhere on Usenet, WITH correct attribution, cannot be defamation.

This SEEMS to contradict your statement, but I haven't researched
the details.

>Subject: Re: Internet free speech legal questionFrom: "Arthur L. Rubin" ronnirubin@sprintmail.comDate: 2/3/2004 9:57 AM Pacific Standard TimeMessage-id: <401FE0F7.DFF0A95C@sprintmail.com>Katherine Griffis-Greenberg wrote: Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement.At least in some defamation cases in California, it has been"established" (law of the case), that quoting a Usenet messageelsewhere on Usenet, WITH correct attribution, cannot be defamation.This SEEMS to contradict your statement, but I haven't researchedthe details.

You are correct, Arthur. The case is
Stephen J. Barrett et al vs. Hulda Clark et a . The judge was Richman.

"Judge Richman held that section 230 of the CDA "provides immunity to users, as
well as providers, of interactive computer services." He found that Rosenthal,
"as a user of an interactive computer service, that is, a newsgroup, . . . is
not the publisher or speaker" of statements made by a third person. Thus, Judge
Richman concluded, "she cannot be civilly liable for posting it on the
Internet. She is immune."

Lee Tien, Senior Staff Attorney for the Electronic Frontier Foundation (EFF),
the leading Internet civil liberties organization, said "in enacting section
230, Congress tried to protect free speech on the Internet from chilling
threats of costly litigation. This decision will help achieve that goal and
marks a solid victory for free expression. Internet speech would be stifled if
individuals could be found liable for the defamatory statements of others."

Mark Goldowitz, counsel for defendant Rosenthal and the Director of the
California Anti-SLAPP Project, said, "Judge Richman's opinion is significant.
To my knowledge, this is the first court to rule that Internet re-posting is
immune from civil liability under federal law. This ruling greatly advances
freedom of speech on the Internet. Also, it is very rare for a trial court
judge to issue anything even close to a 27-page order."

If one adopts the federal law, then the case is not just significant for
Californians but also citizens of other states.



"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html

>Subject: Re: Internet free speech legal questionFrom: Jon Beaver jbeaver@NO.comDate: 2/3/2004 9:33 AM Pacific Standard TimeMessage-id: <qtlv10h01tih0jsbnfc7dnrrret13agmu1@4ax.com>On Tue, 3 Feb 2004 09:00:05 -0600, "Richard" <anonymous@127.000>wrote: Katherine Griffis-Greenberg wrote: On Tue, 3 Feb 2004 00:22:44 -0600, "Richard" <anonymous@127.000> in misc.legal, wrote the following:>Then again, if the wording of the site is such that appears to be an>opinion of the words "allegedly stated by" said person, then there might not be a case. Because [sic] "Don't blame me, I'm just quoting". Same as a reporter stating what he was told by "alleged witnesses" of an event. He doesn't know, he wasn't there. He's just quoting the witnesses. "According to witnesses who were present at the time" That statement would basically let the writer off the hook. Wording plays a big role in libel cases. Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement. Each repetition of a defamatory remark is a new injury. This means that one can obtain damages for each time the defamatory statement is repeated in publication, as it passes from one party to another, if the original party making the allegation is included and the repeater relies totally upon that person's statement as the truth. In an action for defamation, the plaintiff must prove simply the defamatory words were uttered in an effort to harm their reputation. It is not hearsay (in fact defamation is not covered by the hearsay rule in most US states and internationally) because the plaintiff is not relying on their truth but simply exhibiting the fact that the words were written. Often the plaintiff is seeking to show that the words are untrue. So, Z publishing that 'X said this about Y,' with such statement is presented as the truth of the matter, and Y is harmed by the statement, which is shown to be false and/or distributed with malice/reckless disregard for the truth, would give a cause of action by Y against not only X but also against Z for not ascertaining the truth or falsity of the statement before publication. These rules are well-known to the press and other media. Therefore, any web publisher (such as the 'friend's' weblog) had better consider that defamation rules also attach to his/her publication as well (as noted in several court decisions). The only exception would be if the publication was made under qualified privilege (such as reporting of a court proceeding, etc.), which doesn't appear to be the case here.Thank you for the lesson.But you didn't learn it. She was simply reciting the general lawaccurately. She was compelled to do so because you were misleadingthe poster by acting like you know something.

Hmmm...well, everybody cannot keep up with everything, it seems. See Rubin's
post and my response.But that is not my purpose in my posts.I lean towards pointing out there are questions which must be asked andanswered before one can truly call it libel per se.Do you know that "libel per se" is a term of legal art, and doesn'tjust mean "as such" in the context of a discussion of defamation?

But he wasn't misleading anyone by saying this, necessarily. He just forgot to
use a comma. Why didn't *you* supply the information, then, that "libel per
se", minus the comma, has to do with damages. In other words, the legal term
means that in cases of libel, damages are assumed and don't have to be proved.
Regardless, the plaintiff still has the burden of proof--that the speech was
false.
Hopefully, the poster will understand that there is more out there for HIMto acquire the knowledge on.

And he is not the only one, it would seem.

(snip)
Well, he ain't going to find it from you.After all, trial lawyers can't possibly know every law in the state, andevery court case connected to it right?"Knowing the law" isn't what lawyers are about.

In many cases, this may be perfectly true, but it's a novel theory,
nonetheless.


"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html

On Tue, 03 Feb 2004 09:57:11 -0800, "Arthur L. Rubin"
<ronnirubin@sprintmail.com> in misc.legal, wrote the following:
Katherine Griffis-Greenberg wrote: Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement.At least in some defamation cases in California, it has been"established" (law of the case), that quoting a Usenet messageelsewhere on Usenet, WITH correct attribution, cannot be defamation.This SEEMS to contradict your statement, but I haven't researchedthe details.

My understanding of Barrett v. Clark, which is the case to which you
refer, is that a person who reposts _a written libel by a third person_
cannot be held legally accountable in defamation for its reposting via
Internet. This issue is not the present one in this thread, however.

Our original poster questioned whether a libel action could be sustained
over an entry in a weblog which was offered as the truth of an event by
or statement of a professor, who has threatened to sue for the web
author slander/defamation. The statement by the weblog author is
offered as a true account of the event, either via hearsay of
'witnesses' to the statement or by the weblog author's interpretation of
a comment/s by the professor. Whether it is true or not would be a
matter of legal deliberation: the thread poster did not give full
details (which is probably best to avoid legal action at this time).

My comment had to do with the observation that the weblog author had
better be absolutely clear before posting such comments that what she/he
posts to the weblog is sustainable as true and otherwise meet defamation
restrictions and requirements of due care (such as investigating the
accuracy of a statement, and by what means it is offered, who offers it
as the 'truth' of an event, and whether it can be proven as truth of the
event/statement). A weblog author is, as far as I understand even
Barrett v. Clark, still responsible for his/her _own_ writings, and is
subject to meeting the legal requirements to prevent defamatory remarks
from being published.

In short, Barrett v. Clark only made it clear that _re-posting_ of libel
written by a 3rd party will not hold the reposter legally accountable.
However, what our present weblog author is writing is not a written
re-post of another, but based upon her own account of the event, or an
interpretation of the event based on hearsay of others, which may or may
not be libelous.


--
Katherine Griffis-Greenberg, J.D.

DISCLAIMER:

Not a practicing attorney, and no attorney-client relationship
is created. This response is for discussion purposes only. It
isn't meant to be legal advice. If you wish legal advice, seek
out an attorney in your own state who is familar with your
state's laws and applications thereof.

>Subject: Re: Internet free speech legal questionFrom: Katherine Griffis-Greenberg egylist@griffis-consulting.comDate: 2/3/2004 5:59 PM Pacific Standard TimeMessage-id: <56j02017ninfglja04fusnmu8a5mu4cnsf@4ax.com>On Tue, 03 Feb 2004 09:57:11 -0800, "Arthur L. Rubin"<ronnirubin@sprintmail.com> in misc.legal, wrote the following:Katherine Griffis-Greenberg wrote: Reporting even "alleged" defamatory remarks can get the "quoter" in big trouble if he/she does not take due care to ascertain the remarks were true. Informing the reader that it is someone else's allegation (and you are just repeating it) is no defense at all and for the purposes of defamation, a hearsay statement is the same as a direct statement.At least in some defamation cases in California, it has been"established" (law of the case), that quoting a Usenet messageelsewhere on Usenet, WITH correct attribution, cannot be defamation.This SEEMS to contradict your statement, but I haven't researchedthe details.My understanding of Barrett v. Clark, which is the case to which yourefer, is that a person who reposts _a written libel by a third person_cannot be held legally accountable in defamation for its reposting viaInternet. This issue is not the present one in this thread, however.Our original poster questioned whether a libel action could be sustainedover an entry in a weblog which was offered as the truth of an event byor statement of a professor, who has threatened to sue for the webauthor slander/defamation. The statement by the weblog author isoffered as a true account of the event, either via hearsay of'witnesses' to the statement or by the weblog author's interpretation ofa comment/s by the professor. Whether it is true or not would be amatter of legal deliberation: the thread poster did not give fulldetails (which is probably best to avoid legal action at this time).My comment had to do with the observation that the weblog author hadbetter be absolutely clear before posting such comments that what she/heposts to the weblog is sustainable as true and otherwise meet defamationrestrictions and requirements of due care (such as investigating theaccuracy of a statement, and by what means it is offered, who offers itas the 'truth' of an event, and whether it can be proven as truth of theevent/statement). A weblog author is, as far as I understand evenBarrett v. Clark, still responsible for his/her _own_ writings, and issubject to meeting the legal requirements to prevent defamatory remarksfrom being published.In short, Barrett v. Clark only made it clear that _re-posting_ of libelwritten by a 3rd party will not hold the reposter legally accountable.However, what our present weblog author is writing is not a writtenre-post of another, but based upon her own account of the event, or aninterpretation of the event based on hearsay of others, which may or maynot be libelous.

"Judge Richman found that none of the plaintiffs had valid claims against
Rosenthal. He ruled that Rosenthal's statements calling Barrett and
Polevoy "quacks," and Barrett "arrogant" and a "bully" who tried to
"extort" her, were not actionable because "they do not contain provably
false assertions of fact, but rather are expressions of subjective judgment."

And that speaks to what you had written about calling someone a quack being
libel per se.
Doctor: quack, abortionist, faker, and >incompetent.

Judge Richman further found that only one statement by Rosenthal was
arguably defamatory -- a document written by someone else which Rosenthal
re-posted to an Internet newsgroup. Judge Richman held that this statement
by Rosenthal was protected under section 230 of the federal Communications
Decency Act (CDA), a law Congress enacted in 1996 expressly "to promote the
continued development of the Internet and other interactive computer
services," which Congress declared should be "unfettered by Federal or
State regulation."

Judge Richman held that section 230 of the CDA "provides immunity to users,
as well as providers, of interactive computer services." He found that
Rosenthal, "as a user of an interactive computer service, that is, a
newsgroup, . . . is not the publisher or speaker" of statements made by a
third person. Thus, Judge Richman concluded, "she cannot be civilly liable
for posting it on the Internet. She is immune."

There is a lot more to all this. In California, and elsewhere, there are
anti-SLAPP laws. If the OP was talking about something related to a public
issue, as was the Barrett case, then there are other ramifications. Judge
Richman, to be best of my knowledge, did not clarify that one was only immune
from reposting "written" statements by another. If one identifies ones source,
as Rosenthal did, then she obviously did not have to research the "truth or
falsity" of the writing. By the same token, if someone writes something on a
website pertaining to a problem of public concern and identifies the source of
the information, how does that individual become any more of a "publisher" than
Ilana Rosenthal?

However, I grant that there is not enough information from the OP to make a
judgment on what his post is all about.

Disclaimer: I am not an attorney. This is for discussion purposes only and is
not to be construed as legal advice. For legal advice, it is best to consult
an attorney.



"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html

On 04 Feb 2004 03:42:40 GMT, marianneluban@aol.comnospam (MarianneLuban)
in misc.legal, wrote the following:
In short, Barrett v. Clark only made it clear that _re-posting_ of libelwritten by a 3rd party will not hold the reposter legally accountable.However, what our present weblog author is writing is not a writtenre-post of another, but based upon her own account of the event, or aninterpretation of the event based on hearsay of others, which may or maynot be libelous."Judge Richman found that none of the plaintiffs had valid claims againstRosenthal. He ruled that Rosenthal's statements calling Barrett andPolevoy "quacks," and Barrett "arrogant" and a "bully" who tried to"extort" her, were not actionable because "they do not contain provablyfalse assertions of fact, but rather are expressions of subjective judgment."And that speaks to what you had written about calling someone a quack beinglibel per se.Doctor: quack, abortionist, faker, and >incompetent.

There was nothing I read in Barrett v. Clark,which speaks against libel
per se. Recall that the case is about issues which are a matter of
public interest and not about the private life of an individual.
Barrett presented himself as a "renowned" medical journalist and
consumer advocate, who claims his works at Quackwatch exposes quacks and
medical charlatans. Thus, what Richman's comments here are about is the
issue of "fighting words," as Rosenthal is posting her own opinion about
the effectiveness of his work (recall Barrett is NOT a practicing
physician), which would be a matter of public interest.

Here's the full statement of what Richman actually said:

"Plaintiffs complain that Rosenthal has posted to Internet newsgroups
her views that plaintiffs Barrett and Polevoy are "quacks"; that Barrett
is "arrogant" and a "bully"; and that Barrett has tried to "extort" her.
Such statements are not actionable, because they do not contain provably
false assertions of fact, but rather are expressions of subjective
judgment. As Justice Swager observed in Copp v. Paxton (1996) 45
Cal.App.4th 829: "The issue whether a communication was a statement of
fact or opinion is a question of law to be decided by the Court. In
making the distinction, the courts have regarded as opinion any 'broad,
unfocused and wholly subjective comment,' such as that the plaintiff was
a 'shady practitioner,' 'crook,' or 'crooked politician.' Similarly, in
Moyer, this court found no cause of action for statements in a high
school newspaper that the plaintiff was 'the worst teacher at FHS' and
'a babbler.' The former was clearly 'an expression of subjective
judgment.' And the epithet 'babbler' could be reasonably understood only
'as a form of exaggerated expression conveying the student-speaker's
disapproval of plaintiff's teaching or speaking style.' (Cits. omitted;
45 Cal.App.4th at 837-838.) To the same effect, see Morningstar, Inc. v.
Superior Court (1994) 23 Cal.App.4th 676, 691, n. 5, citing cases
holding that (a) referring to township clerk as "playing hide and seek"
with township funds, (b) referring to William Buckley as a "fellow
traveler of fascism," and (c) referring to a change of membership on
public board as "sleazy sleight of hand," are nonlibelous because the
comments are phrased in vituperative terms or because the language was
used in a "loose or figurative" sense."

Source:
http://www.casp.net/barrett.html
Current as of Feb. 4, 2004.

Thus, Richman is saying that Rosenthal's comments about Barrett being a
'quack' falls into this genre of speech. However, IF Barrett was a
practicing physician, and Rosenthal had made such a statement as this:
"Dr. Barrett has had a number of patients under his care die within the
past year - more than normal. It must be that he is a quack." Then
Rosenthal would be making "provabl[e] false assertions of fact" and may
be (dependent upon the state's law on libel per se) actionable as
defamation under libel per se.
Judge Richman further found that only one statement by Rosenthal wasarguably defamatory -- a document written by someone else which Rosenthalre-posted to an Internet newsgroup. Judge Richman held that this statementby Rosenthal was protected under section 230 of the federal CommunicationsDecency Act (CDA), a law Congress enacted in 1996 expressly "to promote thecontinued development of the Internet and other interactive computerservices," which Congress declared should be "unfettered by Federal orState regulation."Judge Richman held that section 230 of the CDA "provides immunity to users,as well as providers, of interactive computer services." He found thatRosenthal, "as a user of an interactive computer service, that is, anewsgroup, . . . is not the publisher or speaker" of statements made by athird person. Thus, Judge Richman concluded, "she cannot be civilly liablefor posting it on the Internet. She is immune."

She is immune ONLY in the case of the re-posting of the libel. Had
Rosenthal written the post _herself_, then she could have been held
accountable for defamation in a court of law.
There is a lot more to all this. In California, and elsewhere, there areanti-SLAPP laws. If the OP was talking about something related to a publicissue, as was the Barrett case, then there are other ramifications. JudgeRichman, to be best of my knowledge, did not clarify that one was only immunefrom reposting "written" statements by another.

He explicitly states such! Richman:

"In sum, the Court concludes that, with one exception, the publications
attributed to Rosenthal are not statements of fact, and thus will not
support any plaintiff's claim for libel. The one exception, that is, the
one statement that appears to be factual, is the posting by Rosenthal of
the self-described "opinion piece" by Tim Bolen claiming plaintiff
Polevoy stalked Christine McPhee, and the Court turns to discussion of
that statement.

iv) Rosenthal's Statement About Polevoy Is Protected By Federal Law

The Complaint alleges in pertinent part that sometime after August 14,
2000 Rosenthal "repeatedly posted" to newsgroups "at least one" libelous
message, (Paragraph 18), which message was that Polevoy stalked
Christine McPhee. Because Plaintiffs specifically pleaded that such
message was in fact originally posted by Tim Bolen and was reposted by
Rosenthal, Rosenthal's moving papers contended that 47 U.S.C. 230
shielded her from liability. Plaintiffs' Opposition eschewed any
reference to, much less discussion of, this argument and Rosenthal's
Reply urged that the issue was conceded. At the hearing the Court
confronted counsel for Plaintiffs about this, and Plaintiffs'
Supplemental Memorandum does address the issue. (Supplemental
Memorandum, hereinafter cited "Supp. Opp.," 5:21-10:14.) But not
successfully.

47 U.S.C. 230 is part of the Communications Decency Act enacted by
Congress in 1996 ("the Act"), and includes provisions creating immunity
for certain communications on the Internet. As pertinent here, 47 U.S.C.
230(c)(1) provides that: "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_." [FN 3] And Section
230(e)(3) provides in relevant part: "No cause of action may be brought
and no liability may be imposed under any State or local law that is
inconsistent with this section."

[FN 3] Section 230(f)(2) defines "interactive computer service" as any
information service system, or access software provider that provides or
enables computer access by multiple user to a computer server ..."
Section 230(f)(3) defines "information content provider" 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 serve. Section 230(f)(4) defines "access software
provider" as "a provider of software (including client or server
software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content; (B) pick, choose,
analyze, or digest content; or (C) transmit, receive, display, forward,
cache, search, subset, organize, reorganize, or translate content."

These protections for covered communications were enacted "to promote
the continued development of the Internet and other interactive computer
services and other interactive media," and "to preserve the vibrant and
competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State
regulation." (47 U.S.C. 230(b)(1),(2).) "[B]y its plain language, §
230[(c)(1)] _creates a federal immunity to any cause of action that
would make service providers liable for information originating with a
third-party user of the service._" (Zeran v. American Online (4th
Cir.1997) 129 F.3d 327, 330, cited with approval in Kathleen R. v. City
of Livermore (2001) 87 Cal.App.4 th 684, 692.) Thus, § 230(c)(1)
provides immunity to users, as well as providers, of interactive
computer services.

It is undisputed that Rosenthal did not "create" or "develop" the
information in defendant Bolen's piece. Thus, as a user of an
interactive computer service, that is, a newsgroup, Rosenthal is not the
publisher or speaker of Bolen's piece. Thus, she cannot be civilly
liable for posting it on the Internet. She is immune." (Emphasis _ _
mine]

Had Rosenthal "created" or "developed" the postings, then she would have
been held accountable for writing a defamatory post, according to even
Richman's analysis. A recent federal case makes the issue even a closer
issue as well (see below).
If one identifies ones source,as Rosenthal did, then she obviously did not have to research the "truth orfalsity" of the writing. By the same token, if someone writes something on awebsite pertaining to a problem of public concern and identifies the source ofthe information, how does that individual become any more of a "publisher" thanIlana Rosenthal?

The first level poster is always responsible for the way his or her
words are presented on the Internet or any other published medium. I
might, for example, have heard from Z that X took money from his
employer, and I have always thought Z was a fairly reliable source.
However, if I report online (in a web page, listserv, discussion list,
etc.) that X took money from his employer, because Z told me this, I am
still presenting the statement as the truth of the subject.

Moreover, I am asserting it to a large group of people who may include
X's employer. Now, if X loses his job, his prestige in his community,
etc. because if what _I_ wrote (and recall, I developed and created the
post to the Internet), then who is X going to pursue for libel? Z or
me?

Z didn't write it, and may actually deny he said it. The context of
the statement made by Z verbally is lost by my writing (he made have
made the comment lightheartedly, as a joke, a snide comment,
sarcastically, etc.). So, in terms of _libel_, action against Z is
rather shaky, especially if he asserts he never made the statement _as I
reported it in writing_.

Now, what care did _I_ take in ascertaining whether what Z said was
true? If I did nothing to determine what Z was true as a _fact_ before
I wrote it, then X is going to have a field day with me for a number of
reasons:

a) I made a statement which was demonstrably false (as he didn't steal
from his employer, and can show it is also libel per se - imputation of
a criminal act without supporting proof);

b) he was injured tangibly by the statement (loss of job, prestige in
the community, etc.)

c) I wrote the statement with reckless disregard for the truth (since I
didn't research my information as "the truth"), and possibly with
malice, if it's shown I did so with the intent to harm X (that's for the
Court to decide).
======================
A very good example where one posting what another said did which NOT
create immunity under the CDA is, interestingly enough, another
California case, Smith v. Batzel, albeit a _federal one_:

See:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/AE0A858C82A2EA8F88256D4E007A736C/$file/0156380.pdf?openelement
Smith v. Batzel
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 01-56380
CV-00-09590-SVW
Decided June 24, 2003

Specifically to this question, we are covering the liability of the
re-poster of the libel, a Ton Cremers, who operated a listserv under the
name of "Museum Security Network."

J. Berzon delivered the majority opinion, which stated, in part:

"There is no reason inherent in the technological features of
cyberspace why First Amendment and defamation law should
apply differently in cyberspace than in the brick and mortar
world. Congress, however, has chosen for policy reasons to
immunize from liability for defamatory or obscene speech
'providers and users of interactive computer services' when
the defamatory or obscene material is 'provided' by someone
else. This case presents the question whether and, if so, under
what circumstances a moderator of a listserv and operator of
a website who posts an allegedly defamatory e-mail authored
by a third party can be held liable for doing so. The case also
presents a novel procedural question -- whether the denial of
an Anti-SLAPP suit filed pursuant to California law can be
appealed prior to a final judgment in the underlying case.

<...>

2. Application to Cremers and the Museum Security
Network

[9] 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 educa-tional
institutions.' § 230(f)(2).

[The Court then determined that Cremers ran such a service]

[12] 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.

[The Court determined Cremers did not create the post in question, but
notes Cremers received the e-mail from Smith _not_on the listserv's
e-mail address (Smith was not a subscriber to the listserv), but to him
personally]

However, as the Court notes, this possibly changes the responsibility
issue _away_ from § 230 CDA immunity for Cremers :

"[14] 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.

[15] '[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.

[16] 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.

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."

[Discussion of the original intent of § 230, which was for message
boards and the free exchange of opinions and ideas.]

However, notes Berzon,

"...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."

With these instructions, the Federal Court sent the case back to the
lower levels for determination on the question of Cremers'
responsibility for the publishing of Smith's allegations against Batzel,
and whether his selection of material caused him to come into
culpability for defamation as well, saying they

"...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.

As J. Gould noted in the dissenting opinion to this decision, other
issues will need to be examined by the federal district court as well:

"...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 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.

<...>

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 enti-tled
to CDA 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." (In this paragraph only, emphasis _ _ mine).

Thus, my statement to the original poster remains: a weblog author
should be absolutely sure that any post on the incident about the
professor's remarks or actions must be _factually true_, and not done
with the intent to 'defame' the professor. Since I don't know the
context or content of the statement in question, I cannot say whether
the professor is threatening to sue under libel per se or libel in the
general sense.

In either case, the responsibility of the weblog author (who is not
"re-posting," but creating and developing the post) is not covered under
CDA immunity in any decision covered so far. She/he would be the
"information content provider," and not the "provider[s] or user[s] of
an interactive computer service."

This position was also made clear in respect to Smith v. Batzel's
fallout on the Internet law website, Inter Alia, at

http://www.inter-alia.net/index.php?id=P1054
Friday, July 4
Liable for Libel?
(Current as of Feb. 4, 2004)


--
Katherine Griffis-Greenberg, J.D.

DISCLAIMER:

Not a practicing attorney, and no attorney-client relationship
is created. This response is for discussion purposes only. It
isn't meant to be legal advice. If you wish legal advice, seek
out an attorney in your own state who is familar with your
state's laws and applications thereof.

Katherine Griffis-Greenberg wrote: On 03 Feb 2004 22:47:59 GMT, marianneluban@aol.comnospam (MarianneLuban) in misc.legal, wrote the following:

[snip]
Others (and this is no doubt the largest group) affect the honesty, integrity or morals of anyone to whom they are applied. Here are just a few examples of words and phrases you should not use in reference to individuals or groups: Professionals. Attorney: shyster, ambulance chaser, crafty, unprincipled, and slick.

Nonsense! Everybody wants a slick, crafty, unprincipled ambulance
chaser as a shyster-- er, I mean, attorney. :)

And for most of them, those phrases would constitute a compliment.