The Nazi Art Thief Who Wasn't, by Daniel J. Solove

The Nazi Art Thief Who Wasn't, by Daniel J. Solove

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Excerpt from THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET
by Daniel J. Solove


The Nazi Art Thief Who Wasn't

Ellen Batzel, an attorney in North Carolina, hired Bob Smith, a handyman, to do some work on her home. [107] Batzel loved to collect art, and she had many paintings in her collection.

The working relationship turned ugly, and Smith sued Batzel in small-claims court for payment for the repairs. Smith also decided to retaliate against Batzel outside the courts. He sent an email to the Museum Security Network about Batzel's art. The network consisted of a website and an email newsletter about stolen art. It had about one thousand readers, mainly those in the art and museum world, as well as law enforcement officials and journalists. It was run by Ton Cremers, who was the director of security at the Rijksmuseum in Amsterdam. Cremers received the following email:

From: Bob Smith [e-mail address omitted]
To: securma@museum-security.org
Subject: Stolen Art

Hi there,

I am a building contractor in Asheville, North Carolina, USA. A month ago, I did a remodeling job for a woman, Ellen L. Batzel who bragged to me about being the granddaughter of "one of Adolph Hider's right-hand men." At the rime, I was concentrating on performing my tasks, but upon reflection, I believe she said she was the descendant of Heinrich Himmler.

Ellen Batzel has hundreds of older European paintings on her walls, all with heavy carved wooden frames. She told me she inherited them.

I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people. Her address is [omitted].

I also believe that the descendants of criminals should not be persecuted for the crimes of the fathers, nor should they benefit. I do nor know who to contact about this, so I start with your organization. Please contact me via email [ ... ] if you would like to discuss this matter.

Bob.


As the sole manager of the Museum Security Network, Cremers determined which of the emails he received would be forwarded to the group. He decided to send the email along to the group, and he added a message along with the email noting that "the FBI has been informed of the contents of [Smith's] original message."

Some of Cremers's readers were upset that he had forwarded Smith's email. One wrote to him:

Mr. Smith is completely out of line for suggesting that some woman with old paintings in her home has amassed a collection of paintings from Nazi war booty. His claims, evidence and assumptions were ridiculous and he was very disrespectful of this woman's privacy in offering this woman's address .... I think it was wrong for you to take this man's story seriously. Please respond.


Cremers replied that he considered Smith's message dubious, but he defended his decision to forward it. "What is worse," Cremers asked, "forwarding messages with strange contents or censor[ing] messages?"

A few months later, Batzel discovered the message. She was appalled. She wasn't descended from Nazis and had acquired her art from legitimate dealers. As a result of Cremers's posting Smith's email, Batzel lost some clients and had to defend herself against a campaign to get her disbarred.

Batzel sued Cremers for defamation. The court, however, dismissed the case against Cremers based on Section 230 immunity. Since Cremers did not write the email himself, he was just the conduit for it so long as he "reasonably believed" it was provided to him for posting on the Network. [108]

If this case hadn't involved the Internet, Cremers would have a much tougher defense. He would no longer be immune under Section 230. He could be liable for spreading the defamatory statement to others. But because he forwarded it over the Internet, he was immune.

The court's interpretation of Section 230 was quite broad. Smith wasn't merely posting a comment to a website or an online discussion group. Instead, he was emailing a tip to Cremers, who decided what was posted and what wasn't. By forwarding the email, Cremers became the speaker, much as he would have been had he heard a rumor and written about it to the group himself.

Judge Gould issued a powerful dissent in the case: "The majority rule licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity. So long as the defamatory information was written by a person who wanted the information to be spread on the Internet (in other words, a person with an axe to grind), the rumormonger's injurious conduct is beyond legal redress." Judge Gould wrote that Section 230 was not intended to be stretched to immunize people for their "decisions to spread particular communications" and "cause trickles of defamation to swell into rivers of harm." Gould continued: "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." [109]
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