Batzel v. Smith

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)

After extensive discussion of the legislative history of Section 230, the Ninth Circuit confirmed the broad application of “interactive computer service” under the CDA, rejecting the district court's conclusion "that only services that provide access to the Internet as a whole are covered by this definition," and holding that a website and a listserv are covered by Section 230. Id. at 1030-31.

Under Section 230, 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." 47 USC § 230(f)(3). In line with other cases addressing editorial control, the court held that the defendant's "minor alterations" of the original allegedly defamatory email prior to posting it or "his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv)" failed to "rise to the level of 'development.'" 333 F.3d at 1031.

The court also found "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.'" Id. at 1034. If it was not intended for publication, however, immunity does not attach. Id.

The dissent contended that the majority's standard was unworkable because it required a fact-intenstive determination of what the defendant perceived the author's intention to be. Id. at 1037-38. The dissent argued that a defendant who takes an active role in selecting information for publication should not be immune, but those who remove all or part of offensive information should remain immune from suit. Id. at 1038-39.