A few years back -- actually, it was 1993! -- everyone seemed to be talking about Men are from Mars, Women are from Venus. Last November Rick Ross of CultNews.com published a series of posts alleging that Gray and his former wife Barbara DeAngelis both have "bogus credentials." In Ross' words: "The relationship guru who constantly promotes himself as 'Dr. John Gray' and lists a 'Ph.D.' has only one accredited degree, a high school diploma." See also here.

As you might expect, the story was picked up by other bloggers pretty quickly, including Gavin Sheridan, who wrote: "The author of the famous book, 'Men are from Mars, Women are from Venus', John Gray, is a fraud." Now Gavin reports that he has been threatened with a libel suit by John Gray's lawyers.

The number of reported cases involving claims of libel against a blog are small. There are none, in fact. No, the widely reported case of Batzel v. Smith was not a blog case. If you are not familiar with the case, here is a brief sketch of the fascinating background: Robert Smith was a handyman working in North Carolina for Ellen Batzel, who told Smith that she was "the granddaughter of one of Adolf Hitler's right-hand men." Smith later overhead Batzel telling her roommate that she was related to Heinrich Himmler. Smith thought some of the paintings in Batel's home looked old and European, so he tried to track them down on the internet. Smith found the Museum Security Network and sent them an email reporting his suspicions. Ton Cremers received the email in Amsterdam and forwarded it to a listserv as part of the Network's newsletter. The information was also posted on an internet bulletin board. Upon learning of the dissemination of this message, Batzel denied any connection to Himmler and sued Cremers for defamation.

The case was decided in the Ninth Circuit Court of Appeals, where a majority of a panel of three judges held that Cremers was immune from liability under §230 of the Communications Decency Act of 1996. The majority opinion in Batzel begins: "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 grant of immunity, however, does not extend to people who "develop" the information that they disseminate. In response to a motion for rehearing of the case, three judges dissented, reasoning as follows:

There should be little doubt, given ordinary usage that Congress presumably intended, that a publisher's affirmative choice to select certain information for publication for the first time on the Internet 'develops' that information. To put the point more concretely, imagine a defamatory e-mail sent to both an on-line bulletin board for appellate litigation and to a popular appellate litigation blog. Let us say, for example, that the e-mail falsely stated that Judge X of the Y Circuit was paid by Z to render decisions in Z's favor. If the blogger decides to publish the e-mail, there is something qualitatively different about the e-mail as published on the appellate blog, as contrasted with the one posted on the bulletin board. The blogger's conscious decision to publish an e-mail would add, by virtue of his or her reputation and that of the blog, a layer of credibility and endorsement that would be lacking from the e-mail merely posted to the bulletin board. And being the first person to post the defamatory material on the Internet would be a novel presentation of the defamatory material.

This case was widely reported as a great victory for bloggers, but it is clear that bloggers can still be liable for their own words. With respect to Gavin Sheridan, the key word seems to be "fraud," which was his interpretation of the story. Gavin, if you want my two bits, you will edit the original post and publish a retraction ... after you have agreed with Gray's lawyers that these actions will cause them to go away.

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