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

Internet is not a paper

[mpawlo]

Liability for publishers is a very hard issue to deal with. The publisher of the leading Swedish daily Aftonbladet was held accountable for hate speech published in one of its forums. I wrote a short comment on the case published by The Register on the caveats in running an online forum: 'If the media companies and their publishers are held accountable for everything published in their web forums we will soon face an Internet where the possibility of a widened debate has been seriously damaged by law. Let us grasp the uniqueness of the Internet before it is gone. The Internet is not a paper.'

Regards

Mikael

will they come to pick me up?

[kipple]

just wondering.. if I am sued for something I have said on a website I own, will they come to pick me up and bring be in the US to be judged?

Also.. it would be funny if, say, the Chinese Government will sue the US government for "talking about illegal things such as freedom", because those pages can be seen from China.

Or will this lead to country-based firewalls?

Re:will they come to pick me up?

[analog_line]

China already has a national firewall. See also Saudi Arabia, and probably many other nations. Where have you been?

I believe it's only a matter of time until all countries firewall their Intenet access. The US will likely be forced to if the various copy-control bills are passed, because it will be illegal for anyone to download almost anything that doesn't have copy control support built in. They'll also likely be built to keep hostile nations out. It won't be the Iron Curtain. It's be the Iron Firewall. News flash people. The Internet is as much of a place as anyplace else. It can and will be controlled by whomever has the political clout to do so. All this free-love wishful thinking of the past few years is finally starting to be brought down, and the Internet shown for what it really is, just another piece of land to be grabbed, squatted, exploited, fought over, died for, invaded, and buried in. It's landfill. An internal virtual moon built by many people the world over, who didn't change into anything else just because they logged on the Internet.

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?

Related Links

[GigsVT]

This libel suit is just one part of an ongoing battle, one between the police/prison industry, and the general public.

If you are interested in Virginia's prison problem, including the so-called "supermax" prisions, and the insane shit that goes down at one of them, check out the following sites.

Committee to end the lockdown at Marion (old)

Drugsense

Human Rights Watch

November.org

In Virginia, prison is a big business, we import criminals to fill our prisons, and it's used as a source of revenue. On-duty cops are paid state funds to lobby the state legislature for harsher laws. Police, as a organized group, should not have a political voice, they are supposed to enforce the laws, not create them.

I'm no liberal, I believe in strict enforcement of sane laws. But when you have police writing the laws, to protect and expand their own industry, it does not serve the public's best interest.

*sigh*

[dalassa]

Now comes the point: Defamation suits of any kind are nigh impossible to win. I don't see from what was presented in the article how the plantiff can win. The article was in fact reporting actual quotes. Truth is never libel, nor are opionions. Libel must have a specific intent to be injurious and must be a knowing falshood. How on earth this case doesn't fall under one of those I can't see.
If this case is won or even if the jurisdiction is accepted and upheld it does present a grave danger to free expression on the web. Not all countries have the same standard for libel/slander.

As for other countries sueing America. Remember this is America. We never listen to international law when it doesn't suit us, but that is another discussion.

Internet Jurisdiction section on FindLaw

[Seth Finkelstein]

This is an oft-discussed topic. Consider FindLaw - Internet Juridiction

Internet Jurisdiction

The Internet is an interstate and international medium. But does operating a Web Site mean that the operator is subject to personal jurisdiction in courts wherever the Site is accessible? The answer obviously is no. This outline describes the types of activity that likely will permit a court to exercise personal jurisdiction over an Internet actor, consistent with the due process clause of the United States Constitution.

For example: http://profs.lp.findlaw.com/netjuris/netjuris_1.ht ml (emphasis added)

Courts generally have declined to assert personal jurisdiction solely on the basis of Web Site advertising. However, courts have exercised jurisdiction over Web Site operation where additional and more active contacts with the forum took place, such as Internet sales to the forum residents, conducting business in the forum state through numerous contacts, or entering into specific dealings with forum residents

Sig: What Happened To The Censorware Project (censorware.org)

Death of on-line publication?

[mccalli]

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.

Surely the above paragraph could also be applied to national newspapers, national broadcast news, national magazines...basically anything created in one place but available everywhere.

The fact that nationally-available media is still created and published probably means that online media would also still be created and published.

Cheers,
Ian

Disclaimer: Not only am I not a lawyer but I'm British, which means I have no idea about American laws in these circumstances.

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.

Re:Very Dangerous

[Chanc_Gorkon]

Um....how is a libelious statement covered under free speech? Free speech is not totally free speech and can never be. You can't walk in to a crowded theater and shout fire and not expect to be arrested for inciting a riot that will insue after everyone starts to panic and rush out of the theature. I think the post is really taking to much for granted. People on so many websites and in so many forums are not wanting to be accountable for anything they say. The fact is you are accountable. You can go on a site and slander someone the same way you can't do it on TV. IANAL, but I think most lawyers would agree with my opinion. Free speech is a priviledge, not a right (it's only called a right under the constitution). If the populous continue's to make statements they don't want to be accountable for, well maybe free speech isn't a good idea. Don't get me wrong, I think mosty free speech is a good thing. I should be able to say anything I want about CmdrTaco, Hemos or Cowboy Neal without publicly slandering them. From what I gather about the Dow Jones case is soem guy in Australia is pissed he lost money because of what was said on their site. Well, then the person and the site who wrote that can be found libel for it! Could this establish an E-Jurisdiction? Well, sure it can. Just because we are on a World Wide Web doesn;t mean we can't be found libel for what we said! Does this mean that publishing will cease on the web? I doubt it. People and companies will just have to make sure they are careful what they say. Something they should already be doing.

Not any country - not yet

[Kjella]

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?

This one I'd think, if it's "directed" at that jurisdiction. That was at least why they wanted DVD-Jon trialed under californian law, because they considered it an attack on the MPAA (residing in California).

And yes, there's a definite possibility that other countries would enforce the same laws, should USA do so. If USA can trial persons outside their country, why can't everybody else?

Kjella

A least Malda won't have to worry.

[Anonymous Coward]

Lord knows, nothing libelous ever appears on Slashdot.

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.

The Common Denominator Effect

[DerFeuervogel]

This is to be expected. Whenever you try to plug dissimilar systems
together you get the common denominator effect. Recall the old
cross-platform applications back when there were legitimately
multiple available operating systems :^).

But seriously, The solution to this is a uniform set of laws
internationally and a uniform set of constitutional rights.
Since national sovereignty isn't going away anytime soon we have
an impasse. So common denominator effect rules and there isn't
much you can do about it. Hiding behind sovereignty will only
last a while since economic dependencies will eventually
override this last wall of defense.

Expect things to get allot worse before they get any better since
the people who can effect the needed changes have to answer to
constituents who won't stand for dilution of their rights or
ill-gotten privileges.

The Internet was to bring us all together - what we didn't realise
is that we don't really all LIKE each other, but the genie is out of
the bottle so hang on it's gonna get rough.

Hague Convention

[jplove]

I was pretty surprised that Carl Kaplan did not mention the fact that 60 countries are negotiating a treaty that may set international jurisdiction rules for libel and defamation cases. The NYT continues to ignore this treaty, and here the omission is really pretty stark.

http://www.cptech.org/ecom/jurisdiction/hague.ht m

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Just a minute

[Kierthos]

I can't remember the exact legal term, but there is something where the decisions found in one state may be legally binding in all others. The key thing is is "may be". Some states have laws on the books that are violations of law in other states.

Plus, through in the fact that this is a civil case, not a criminal one. In a criminal case, you must prove guilt beyond a reasonable doubt. In a civil case, the guilt only needs to be established by a preponderance of evidence. What that means is in a civil case, it has to be "more likely then not" that guilt is evident. (This is, btw, how OJ was liable for the deaths of Nicole Brown Simpson and Ron Goldman in a civil court, regardless of the fact that he had been found not guilty earlier in a criminal court.)

What this all boils down to is that _if_ this case goes through in Virginia, and _if_ the publisher is found guilty of libel, then it is possible that the decision may be used to affect other cases in other states. But there is also a good chance of this heading up to Appeals Court, and maybe even to the Supreme Court.

IANAL,
Kierthos

Freedom of the Press...

[Sun Tzu]

... is great if you happen to be rich enough to own a printing press. The Internet changed that. Now, anyone, including me, can own a 'printing press'. If this decision stands, freedom of the press may be back exclusively in the hands of the powerful once again.

There are some great ideas in the Constitution of the United States. Freedom of speech and freedom of the press may be the most important of all.

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:huh?

[pmc]

Unfortuantely you're wrong.

And so are you. This is the case of Lawrence Godfrey vs Demon Internet. The case was that somebody had posted a message that was forged to look like it came from Dr Godfrey, and was defamatory of him. This much all the parties agreed on.

Dr Godfrey faxed several ISPs and news providers in the UK and asked them to remove the posting form their newsspools (a mostly futile act it has to be said). Most complied but Demon, presumably thinking he was a usenet kook, didn't. Dr Godfrey followed up with several more faxes requesting action, but Demon refused to comply. So he sued demon for libel, as they were publishing the message in question. After much legal bickering (including the novel argument of "he was asking for it") Demon lost. A good account can be found at cyberrights.

Dr Godfrey is a University lecturer BTW.

Said this before

[wirefarm]

But it still fits -
About 15 years ago, I heard that Iran had contacted the US govt and demanded that they hand over Madonna and Michael Jackson so that they could be put to death on obscenity charges.
(For some reason, the US chose not to...)
Yet, the US feels free to nab Skylaroff and that kid in Norway for doing stuff legal where they live.
Here in Japan, it seems to be legal to publish photos and videos of young teenagers that would get you put away for years in the US, yet pornography that is legal in the US is quite illegal here. They even go as far as to sandpaper away the "naughty bits" from every copy of Playboy and Penthouse imported into Japan. Who's right?

Maybe the best thing is to have the equivalent of that little "Kosher" mark on websites like they have on food, then let the viewer filter as they like. Then limit access to the internet to adults.

But then again, the US will probably just force its standards upon the rest of the world like they always do.

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.