A Libel Suit May Establish E-Jurisdiction

BrianWCarver writes: "The NY Times (free registration blah blah...) is reporting that a libel suit may establish a precedent of allowing online publishers to be sued not in the jurisdiction where their servers reside, but in the jurisdiction of the complaintant. A warden at a Virginia jail didn't like the way he was portrayed by several Connecticut-based online news outlets so he sued in his home state of Virginia. "If the district court decision stands, online publishers could be sued for defamation in any state or country that an online article is read." The article goes on to worry that this will cause publishers to self-censor their online publishing to avoid offending anyone in any jurisdiction, whatsoever, which if carried to its logical conclusion, means online publishing would simply cease." This may remind you of an earlier case in which an Australian businessman sued Dow Jones for libel. Update: 05/27 15:12 GMT by J : Jamie Love points out elsewhere that 60 countries, including the USA, are negotiating a treaty regarding Internet jurisdiction for libel and defamation.

Comments

in any country??

[pubjames]

If the district court decision stands, online publishers could be sued for defamation in any state or country that an online article is read.

I don't understand this. Surely this just applies to the USA, not any country? Do they mean that, if, for instance, a UK publisher published something that was libellous under, say, Japanese law, then they could sue them in the USA? That would be most odd. Or do they mean that if something is libellous in any state of the USA, any pulisher in the world could be sued under USA law, even if they are not resident in that country? That would also seem strange. Or is this just an arrogant assumption that US laws apply everywhere else in the world?

huh?

[Anonymous Coward]

this is fine and dandy in the states - but wouldn't it only apply in another country if *THAT* country had set a similar president?

I seem to recall that here in the UK demon internet wasn't held to account for a posting on one of it's websites/forums, but the user that posted was. There was also a similar case regarding the friendsreunited.co.uk website where the poster was sued, not the publisher.

The US is certainly the 3rd largest country in the world - and is the strongest ecconomic power, but that doesn't mean that the rest of the world follows it's dumb-ass legal system.

---

P.S. I didn't post this - a big boy did it and ran away

Isn't this just yet another reason...

[Rogerborg]

...for international businesses to not have a US subsidiary that can be sequestered in these cases? Remember that in many countries, courts habitually award legal fees to the winner, so frivilous lawsuits are less tempting. Not so in the US, where you have to pay to defend yourself, then pay to launch a counter suit to recover your fees, and it's much easier to use litigation to silence those who can't afford to defend themselves. Bottom feeders like $cientology Inc will be watching this case with great interest, I suspect.

Controlling the internet?

[ShwAsasin]

Well once again the US Government decides to try and attempt to control the internet from "free speech" which is the 1st amendment.

So what would happen if I wrote something that defamated a US citizen? I live in Canada and US laws don't apply here. I'll give the one finger salute to the FBI, or what US agency that comes a knocking at my door.

Don't believe the FUD

[automandc]

This will almost certainly be modded down by those who enjoy proclaiming the evil of the American Court system, but I will try anyway.

1) This is not a "new" idea, nor is it limited to the Internet. Believe it or not, there are parallels that can be drawn between the internet and the off-line world. This case seems not too different from the (in)famous Hustler case, in which Hustler Magazine was sued in New Hampshire, despite the fact that very few of its magazines were sold there.

2) Jurisdiction does not equal liability. Just because the VA court found personal jurisdiction over the defendants, does not mean they will be found guilty. As someone points out below, it is very very difficult to win an libel suit against a Media defendant. Several doctrines have been developed over the years that apply equally to the print and online worlds. This case sounds very similar to the facts in New York Times v. Sullivan, which sets the bar very high for public officials who sue newspapers.

3) On the flip side, just because I publish on the internet should not be license to dispense with all modicum of responsible reporting. Although I do not know the facts of this case, it sounds like the defendants will probably win, since they are reporting on the opinions of others. However, one of the ongoing complaints around the world (including here in the USA) about the American press is that they don't always report stories fairly. (Ask the Palestinians for instance). The basic (and difficult to establish) doctrine of liability for libel and defamation is a minimum check against irresponsible reporting.

3) Believe it or not, bad reporting can be very damaging to people who don't necessarily deserve to be pilloried. The number of cases of people who have been tarred and feathered in the press is too many to count. There are standards of reporting, and there is good practice in journalism. Reporters should be held to them whether they print online or on the bathroom walls.

4) This case is in Federal Court for a reason. One of the fundamental rights (Article III of the U.S. Const.) is that citizens of different states can sue each other in the federal courts; it's called "diversity" jurisdiction. The purpose is to ensure that, for instance, a Connecticut reporter doesn't find his fate entirely in the hands of an elected Virginia State judge. The federal courts (don't laugh) are expected to be somewhat more even-keeled than the unpredictable state courts. With a few notable exceptions (DeCSS, Napster) that actually tends to be true.

5) Jurisdiction does not equal liability II: Another issue often overlooked by non-lawyers is the law applied (i.e. the "Choice of law"). Even if the defendants win their motion to have the case dismissed or transferred to Connecticut, the plaintiff can still sue them, they would just have to do it in Connecticut. However, the law of libel, and Choice of law doctrine in 90% of the states says that, when an interstate libel occurs, you apply the law of the state where the most harm occurred. Since the defendant's reputation is largely in Virginia, you would apply Virginia law...even if you are in Connecticut state court (or federal court in Conn, which is where you would be under diversity jurisdiction).

6) The advantage that people are clamoring for here is that online defendants should be allowed to snipe from their home jurisdictions across the internet at whatever target is convenient. If the target of a possibly unjustified, and unfair, attack wants to do anything to defend themselves, they have to do so at great expense in a distant jurisdiction. Think about that, who does that really hurt? It hurts the little guy who can't afford to take his grievance a long way away. Large corporations can litigate anywhere, but individuals cannot. It is exactly this type of jurisdiction limiting that large corporations fight for, and usually sneak into contracts with their customers, so that they can avoid the majority of suits that would be brought against them. (For instance, "I would sue XYZ Corp. for their crappy product, but the license agreement says that all suits have to be brought in California, and I live in New York... I just can't afford it.")

In short, don't jump to conclusions just because the defendant happens to use the internet and the plaintiff appears to be some 18th century small-town southern lawman. People who know how to use the internet can be bad too, and when they are, the law should apply to them equally.

And IAAL.

Flame away,

automan

Re:Don't believe the FUD

[automandc]

My previous comments are directed only toward U.S. Courts applying U.S. Law.

I think you will find that U.S. Courts don't pay much attention to what courts in other nations are doing. IIRC, there was a recent decision by a U.S. court to not enforce a British libel judgement because the U.S. Court found it repugnant to the U.S. Constitution.

What people should remember in the international context is that a Court in another country can say anything it wants, it doesn't mean that it has the power to enforce it. (Think of Salman Rushdie who was given a death sentence by the "courts" of Iran...it doesn't mean that Britain or the U.S. agreed to enforce that).

The concept of jurisdiction is directly equatable to the power of a court to compel (appearance, payment, incarceration etc.).

A person overseas may sue me in their own country (say, GB or Australia), but in order to actually collect (provided I don't voluntarily go to Australia or GB, or have assets there), they would have to bring that judgment to an Americancourt to enforce -- providing me with ample opportunity to argue under U.S. law. One of the main reasons a U.S. court will choose not to enforce a foreign judgment is if it believes the foreign court did not have jurisdiction to render the judgment. Thus, if the American court doesn' think the Australian court had jurisdiction, it won't enforce the judgment. What the Australian court will do with an American judgment is up to the Australians (I can't comment on that).

In another words, so long as you are in your own country (i.e., under the protection of your sovereign), no foreign court can do anything to you without your own government's permission (manifested through the Court System in the U.S.).

So even if the Courts of e.g. Iraq decide they have jurisdiction over me, I don't really care, so long as Baghdad isn't on my current vacation itinerary.

Also, I think that, while it is true that large corporations have the power/ability to make individual's lives hell, there are a lot of reasons this will not happen except in the unfortunate (and punishable) rare instance. Many states are adopting so-called SLAPP statutes to penalize plaintiffs who bring frivolous libel suits. Also, corporations (or any litigant) who abuses the court system (including the discovery process) to harrass their opponent faces stiff penalties. (And they are enforced). There are disturbing trends recently of corporations attempting to silence websites that are critical of them, but those efforts are mainly through the way-messed up Trademark line of attack. IP law in general is inimical of free speech. You won't get any argument from me that the IP laws are messed up and need overhaul. Also, the creation of WIPO and other "international" arbitration mechanisms screws up the balance of the courts.

I won't defend ICANN or WIPO.

automan

Its worse than that

[LazyDawg]

IANAL, but... This case could provide a legal precedent for any content, online or on paper, that can be read extra-jurisdictionally.

This generation of judges might treat computers as if they're magical and a special case to the death, but in a few hundred years, when these ones have all died off, we'll end up with case law that will restrict the behavior of smarter judges, who get that print is print, wherever it occurs.