J.  State Courts Try To Resolve

Various Digital Defamation Issues

 

      After a relatively quiet few years in the courts, online libel has again become an area of substantial legal activity.   Courts in several states addressed issues as varied as personal jurisdiction, the New York Times privilege, anonymous critics, the California SLAPP statute, and the “single publication” rule -- all in the digital context.

 

Personal Jurisdiction

      Two cases have created a split on the issue of whether personal jurisdiction may rest on nothing more than access in the forum state to a published statement that predictably offends (and arguably defames) a resident of that state.  In Young v. New Haven Advocate, a federal judge in Virginia last year ruled that an online publisher was subject to suit even in a remote forum under such conditions.  In mid-December 2002, however, the U.S. Court of Appeals for the Fourth Circuit reversed the district judge’s ruling, and held unequivocally that personal jurisdiction over out-of-state media having no other contact with the forum state would be sustained only where the publishers “manifested an intent to direct their website content to a [forum state] audience.”  Since there was no evidence in this case of such targeting, the mere fact that the newspapers’ Web sites could be accessed in Virginia was legally insufficient; “the newspapers must, through the Internet postings, manifest an intent to target and focus on Virginia readers.”  Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002).  (See Chapter M in this section.)

      Some months earlier (in July), the Minnesota Supreme Court reached a conclusion that in a sense anticipated the Fourth Circuit’s Young ruling.  In Griffis v. Luban, 633 N.W.2d 548 (Minn. 2001), the Minnesota court refused to enforce an Alabama libel judgment against a Minnesota resident who had posted in an Internet chat room disparaging comments about an Alabama resident.  The Alabama courts had deemed it sufficient that the person who posted the negative statements must have realized they would have an impact in Alabama.  That was not enough to satisfy the Minnesota court, however.  “The fact that messages posted to the newsgroup could have been read in Alabama, just as they could have been read anywhere in the world,” wrote Minnesota Chief Justice Kathleen Blatz, “cannot suffice to establish Alabama as the focal point of the defendant’s conduct.”

 

New York Times Privilege

      Early in the year, a New York trial court judge ruled, in Banco Nacional de Mexico v. Rodriguez, No. 603429/00 (N.Y. Sup. Ct. Dec. 5, 2001), that Internet journalism is entitled in a libel suit to the same First Amendment protections as are print and broadcast media.  In dismissing a defamation suit against the online journal Narco News, state supreme court Justice Paula Omansky found that, despite the obvious technical differences among media, and the “fact that the [online] periodical is able to reach a large and diverse audience almost instantaneously,” nothing among those technical distinctions warranted any lessening of the First Amendment safeguards that had long been available to print and broadcast media when they were sued for publishing false and defamatory statements.  The New York Times privilege of fair comment about a public official or public figure applied no less fully to Internet journalists, requiring that a prominent plaintiff must establish “actual malice” before damages could be recovered.   This ruling does not seem to have been appealed, suggesting that Judge Omansky’s assimilation of media across technological lines is likely to prevail.

 

Anonymous Critics

      The unmasking of “anonymous” critics continues to generate important litigation.  Last year, in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), the New Jersey Superior Court’s Appellate Division articulated a most helpful set of standards to guide courts in these cases.  Dendrite calls upon a judge who is asked to unmask such a critic initially to probe the strength of the plaintiff’s substantive claims before deciding whether to force an Internet service provider (ISP) to reveal the critic’s identity.  In the latest such case, Donato v. Moldow, No. BER-L-6214-01 (N.J. Super. Ct. Dec. 21, 2001), a New Jersey trial judge followed the Dendrite formula and declined to unmask the operators of a chat room – “Eye on Emerson” -- in which had been posted well over a hundred anonymous or pseudonymous derogatory comments about Republican politicians in Bergen County.  Among other failings, the politically active plaintiffs had failed to provide adequate notice, as Dendrite envisioned, before they commenced the lawsuit. 

      As for the operator of the Web site where the chat room appeared, the New Jersey judge found that he qualified for the immunity that Section 230 of the Communications Decency Act confers on ISPs for material posted by others.  Thus not only were the identities of the actual posters not subject to disclosure, but the person who provided the medium through which the statements had been publicized was also exempt from any potential liability.  The Donato case, though helpful in amplifying and applying Dendrite’s formula for unmasking cases, may have been an unusually appealing one for the defendants simply because of the plaintiffs’ high political profile. 

 

California SLAPP Statute

      California courts have been asked to apply the state’s SLAPP (Strategic Lawsuit Against Public Participation) statute to a complaint based upon allegedly false and defamatory statements about a company that appeared on various Internet sites, as well as in print.  In ComputerXpress, Inc. v. Jackson, 113 Cal. Rptr. 2d 625 (Cal. App. 2001), along with many rulings on the merits of the lawsuit, the California Court of Appeal concluded on a matter of first impression that (for purposes of the SLAPP statute) Internet postings did constitute a “public forum.”  Previous print cases had interpreted the statutory phrase “public forum” to mean “a place that is open to the public where information is freely exchanged.” “In fact,” observed the ComputerXpress court, “the Web sites in this case present an even stronger case for qualification as public forums than did the newsletter [in the previous print case].  While newspapers exercise editorial control over access to their pages, that feature is not shared by the Web sites involved here.”  The court also ruled that the derogatory statements posted on two Web sites had been (as the SLAPP statute required) “made in connection with an issue of public interest.”

 

“Single Publication” Rule

      Finally, more in the realm of procedure, a New York court addressed a libel plaintiff’s claim that the statute of limitations should not apply to Internet publications.  The argument was that, since a Web site could be altered at any time by its owner or publisher, and because digital publications were available only to those who specifically sought them, each online viewing should be deemed a “new publication” that re-triggered the statute of limitations.  “Don’t even think about it,” ruled New York State’s highest court, early in July 2002, in Firth v. New York, 775 N.E.2d 1011 (N.Y. 2002).  Although under early common law there was a policy that each communication of a defamatory message to a third person was a separate publication, courts had long since gone to a “single publication” rule that transcends media.  If anything, the force of that rule is even greater in cyberspace than in print, “in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet.”  Reverting to the multiple publication rule for digital messages would have “a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet, which is, of course, its greatest beneficial promise,” the court said.

 

--Robert M. O’Neil