关于网络诽谤现有法律依据


所有跟贴·加跟贴·新语丝读书论坛

送交者: 胡扯8 于 2006-11-24, 22:54:33:

虽然诉讼在联邦法庭,但是联邦法庭将应用纽约州的法律。转贴一篇一般性研究。这篇文章几乎涵盖了网络诽谤现有法律的各个方面。供方版主和各位研习。

3 A.L.R.6th 153 (Originally published in 2005)

American Law Reports ALR6th
The ALR databases are made current by the weekly addition of relevant new cases.

Individual and Corporate Liability for Libel and Slander in Electronic Communications, Including E-mail, Internet and Websites


Carolyn Kelly MacWilliam, J.D.


The emergence of the Internet age has affected many causes of action, including defamation claims. Computer access enables any individual to send or post electronic communications to individuals, Web sites, and Internet chat rooms basically stating anything that the user pleases. This annotation will examine when liability arises for defamatory statements sent or created electronically. In the case of Knievel v. ESPN, 393 F.3d 1068, 33 Media L. Rep. (BNA) 1097, 3 A.L.R.6th 733 (9th Cir. 2005) , the court held that a reasonable person would not construe a caption under a photo on a Web site as charging the celebrity with being a pimp or that his wife was a prostitute, as required to establish defamation. Issues of jurisdiction over defendants that send, or post, allegedly defamatory statements, obligations to seek retractions, and general defamation liability are also affected by the Internet and are discussed herein.


TABLE OF CONTENTS


Article Outline

Index

Table of Cases, Laws, and Rules

Research References

ARTICLE OUTLINE


I. PRELIMINARY MATTERS

§ 1. Scope

§ 2. Summary and comment

§ 3. Practice pointers

II. PROCEDURAL MATTERS

§ 4. Demand for retraction--Necessary prior to instituting litigation

§ 5. Demand for retraction--Not necessary prior to instituting litigation

§ 5.5. Disclosure of defendant's identity

§ 5.7. "Published" nature of statements

§ 5.9. Amendment of complaint to add operator of blog

§ 6. Statute of limitations--Barred action

§ 7. Statute of limitations--Did not bar action

III. JURISDICTION

A. Jurisdiction Not Found

§ 8. Allegedly defamatory comments posted on Web site--Maintained by defendant

§ 9. Allegedly defamatory comments posted on Web site--Maintained by third party

§ 10. Allegedly defamatory comment published in Internet bulletin board or newsgroup

§ 11. Allegedly defamatory comment published in e-mail transmission

B. Jurisdiction Found

§ 12. Allegedly defamatory comments posted on Web site--Maintained by defendant

§ 13. Allegedly defamatory comments posted on Web site--Maintained by third party

§ 14. Allegedly defamatory comments posted on Internet bulletin board or newsgroup

§ 15. Allegedly defamatory comments published in e-mail transmission

IV. DEFAMATION LIABILITY NOT FOUND

A. Statement Published by E-mail Transmission

§ 16. Plaintiff failed to adequately state claim

§ 17. Qualified privilege applied to statement

§ 18. Allegedly defamatory statement was not false

§ 19. No corporate liability for publication by agent or employee

B. Statement Published on Internet Bulletin Board

§ 20. Plaintiff failed to adequately state claim

§ 21. Qualified privilege applied to statement

§ 22. Allegedly defamatory statement was not false

C. Statement Published on Internet Site

§ 23. Plaintiff failed to adequately state claim

§ 24. Qualified privilege applied to statement

§ 25. Allegedly defamatory statements were not false

V. DEFAMATION LIABILITY FOUND OR SUMMARY JUDGMENT DENIED

A. Statement Published by E-mail Transmission

§ 26. Plaintiff adequately stated claim

§ 27. Qualified privilege did not apply to statement

§ 28. Allegedly defamatory statement was false

§ 29. Corporate liability for publication by agent or employee

B. Statement Published on Internet Bulletin Board

§ 30. Generally

C. Statement Published on Internet Site

§ 31. Plaintiff adequately stated claim

§ 32. Qualified privilege did not apply to statement

§ 33. Allegedly defamatory statement was false

§ 34. Corporate liability for publication by agent or employee

§ 35. Individual liability for publication by corporation

VI. OTHER MATTERS

§ 36. Anonymous speakers

RESEARCH REFERENCES

INDEX


Actual malice, statement made with § 27

Adequately state claim, failure to § 16, 20, 23

Adequately stated claim, plaintiff having § 26, 31

Agent or employee, corporate liability for publication by § 19, 29, 34, 35

Bulletin board or newsgroup, Internet, comment published in § 10, 14, 20- 22, 30

Claim, failure to adequately state § 16, 20, 23

Claim, plaintiff having adequately stated § 26, 31

Comment and summary § 2

Corporate liability for publication by agent or employee § 19, 29, 34, 35

Demand for retraction, necessity of prior to instituting litigation § 4, 5

E-mail transmission, statement published by § 11, 15- 19, 26- 29

Employee or agent, corporate liability for publication by § 19, 29, 34, 35

Failure to adequately state claim § 16, 20, 23

False, allegedly defamatory statement as § 28, 33

False, allegedly defamatory statement as not § 18, 22, 25

Individual liability for publication by corporation § 35

Internet bulletin board or newsgroup, comment published in § 10, 14, 20- 22, 30

Internet website, statement published on § 8, 9, 12, 13, 23- 25, 31- 35

Jurisdiction § 8- 15

Limitation of actions § 6, 7

Long-arm statute § 8- 15

Malice, actual, statement made with § 27

Newsgroup or bulletin board, Internet, comment published in § 10, 14, 20- 22, 30

Non-resident defendants, jurisdiction over § 8- 15

Opinion § 18, 22, 25, 28, 30, 33

Practice pointers § 3

Preliminary matters § 1- 3

Privilege, qualified § 17, 21, 24, 27, 32

Procedural matters § 4- 7

Qualified privilege § 17, 21, 24, 27, 32

Retraction, necessity of demand for prior to instituting litigation § 4, 5

Scope of annotation § 1

State claim, failure adequately to § 16, 20, 23

Stated claim, plaintiff having adequately § 26, 31

Statute of limitations § 6, 7

Summary and comment § 2

Third party, jurisdiction over non-resident defendant where website maintained by § 9, 13

True, allegedly defamatory statement as § 18, 22, 25

True, allegedly defamatory statement as not § 28, 33

Website, statement published on § 8, 9, 12, 13, 23- 25, 31- 35

Written demand for retraction, necessity of prior to instituting litigation § 4, 5

Table of Cases, Laws, and Rules


United States

Fed. R. Civ. P. 12(b). See § 23
Fed. R. Civ. P. 12(b)(2). See § 8
Fed. R. Civ. P. 12(b)(6). See § 23


Supreme Court

Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984) -- § 9, § 14, § 15


First Circuit

Abiomed, Inc. v. Turnbull, 379 F. Supp. 2d 90 (D. Mass. 2005) -- § 14
McMann v. Doe, 2006 WL 3102986 (D. Mass. 2006) -- § 9


Second Circuit

Bihari v. Gross, 119 F. Supp. 2d 309 (S.D. N.Y. 2000) -- § 3
Hammer v. Amazon.com, 392 F. Supp. 2d 423 (E.D. N.Y. 2005) -- § 24
Seldon v. Direct Response Technologies, Inc., 2004 WL 691222 (S.D. N.Y. 2004) -- § 10
Wells v. Goord, 29 Fed. Appx. 693 (2d Cir. 2002) -- § 23


Third Circuit

Machulsky v. Hall, 210 F. Supp. 2d 531 (D.N.J. 2002) -- § 9
Parker v. John Doe #1, 2002 WL 32107937 (E.D. Pa. 2002) -- § 3
Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp. 2d 570 (E.D. Pa. 1999) -- § 16
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) -- § 8


Fourth Circuit

Agora, Inc. v. Axxess, Inc., 11 Fed. Appx. 99 (4th Cir. 2001) -- § 23
Burleson v. Toback, 391 F. Supp. 2d 401 (M.D. N.C. 2005) -- § 8, § 11


Fifth Circuit

Archer and White, Inc. v. Tishler, 2003 WL 22456806 (N.D. Tex. 2003) -- § 9
Bellino v. Simon, 1999 WL 1059753 (E.D. La. 1999) -- § 15
Long v. Grafton Executive Search, LLC, 263 F. Supp. 2d 1085 (N.D. Tex. 2003) -- § 15
Planet Beach Franchising Corp. v. C3Ubit, Inc., 2002 WL 1870007 (E.D. La. 2002) -- § 12
Revell v. Lidov, 317 F.3d 467, 173 Ed. Law Rep. 403 (5th Cir. 2002) -- § 3


Sixth Circuit

Bailey v. Turbine Design, Inc., 86 F. Supp. 2d 790 (W.D. Tenn. 2000) -- § 8
Nehls v. Hillsdale College, 178 F. Supp. 2d 771, 160 Ed. Law Rep. 803 (E.D. Mich. 2001) -- § 16
Sabouri v. Ohio Bureau of Employment Services, 2000 WL 1620915 (S.D. Ohio 2000) -- § 6


Seventh Circuit

Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154 (W.D. Wis. 2004) -- § 8
Peregrine Financial Group, Inc. v. Green, 2001 WL 1548965 (N.D. Ill. 2001) -- § 15


Eighth Circuit

Bible & Gospel Trust v. Wyman, 354 F. Supp. 2d 1025 (D. Minn. 2005) -- § 8
Zidon v. Pickrell, 344 F. Supp. 2d 624 (D.N.D. 2004) -- § 12


Ninth Circuit

EDIAS Software Intern., L.L.C. v. BASIS Intern. Ltd., 947 F. Supp. 413 (D. Ariz. 1996) -- § 3, § 15
Jensen v. Prudential Financial, 130 Fed. Appx. 914 (9th Cir. 2005) -- § 18
Medinah Mining, Inc. v. Amunategui, 237 F. Supp. 2d 1132 (D. Nev. 2002) -- § 3, § 9
Naxos Resources (U.S.A.) Ltd. v. Southam Inc., 1996 WL 662451 (C.D. Cal. 1996) -- § 9
Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999) -- § 12
Rocker Managment LLC v. John Does, 2003 WL 22149380 (N.D. Cal. 2003) -- § 22
Troy Group, Inc. v. Tilson, 364 F. Supp. 2d 1149 (C.D. Cal. 2005) -- § 16
Zwebner v. John Does Anonymous Foundation, Inc., 2001 WL 210173 (D. Or. 2001) -- § 3


Tenth Circuit

Seidl v. Greentree Mortg. Co., 30 F. Supp. 2d 1292 (D. Colo. 1998) -- § 25
Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 427 F. Supp. 2d 1032 (D. Kan. 2006) -- § 32


District of Columbia Circuit

Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) -- § 12
Mallinckrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc., 989 F. Supp. 265 (D.D.C. 1998) -- § 11
Messina v. Fontana, 260 F. Supp. 2d 173 (D.D.C. 2003) -- § 3
Metastorm, Inc. v. Gartner Group, Inc., 28 F. Supp. 2d 665 (D.D.C. 1998) -- § 3
Steinbuch v. Cutler, 2006 WL 3060084 (D.D.C. 2006) -- § 5.9


Alabama

Mills v. Wex-Tex Industries, Inc., 991 F. Supp. 1370 (M.D. Ala. 1997) (applying Alabama law) -- § 16
Novak v. Benn, 896 So. 2d 513 (Ala. Civ. App. 2004) -- § 10


Alaska

Kinzel v. Discovery Drilling, Inc., 93 P.3d 427 (Alaska 2004) -- § 28


Arizona

Austin v. CrystalTech Web Hosting, 211 Ariz. 569, 125 P.3d 389 (Ct. App. Div. 1 2005) -- § 9
Olive v. City of Scottsdale, 969 F. Supp. 564 (D. Ariz. 1996) (applying Arizona law) -- § 17


California

Cal. Civ. Code § 47(c). See § 17
Cal. Civ. Proc. Code § 425.16(e)(2). See § 32
Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 27 Cal. Rptr. 3d 863 (1st Dist. 2005) -- § 20
California Software Inc. v. Reliability Research, Inc., 631 F. Supp. 1356 (C.D. Cal. 1986) (applying California law) -- § 14
Condit v. Dunne, 317 F. Supp. 2d 344 (S.D. N.Y. 2004) (applying California law) -- § 31
Dorsett v. Experience Hendrix, LLC, 2004 WL 2915719 (Cal. App. 4th Dist. 2004) -- § 28
Du Charme v. International Broth. of Elec. Workers, Local 45, 110 Cal. App. 4th 107, 1 Cal. Rptr. 3d 501 (1st Dist. 2003) -- § 32
Jensen v. Prudential Financial, 130 Fed. Appx. 914 (9th Cir. 2005) (applying California law) -- § 17
Jewish Defense Organization, Inc. v. Superior Court, 72 Cal. App. 4th 1045, 85 Cal. Rptr. 2d 611 (2d Dist. 1999) -- § 8
MacDonald v. Aspect Development, Inc., 2004 WL 625755 (Cal. App. 6th Dist. 2004) -- § 17
MCSi, Inc. v. Woods, 2002 WL 32059741 (N.D. Cal. 2002) (applying California law) -- § 14
Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999) (applying California law) -- § 23
Sah v. Montanez, 2004 WL 352654 (Cal. App. 3d Dist. 2004) -- § 17, § 18
Traditional Cat Ass'n, Inc. v. Gilbreath, 118 Cal. App. 4th 392, 13 Cal. Rptr. 3d 353 (4th Dist. 2004) -- § 3, § 6
Varian Medical Systems, Inc. v. Delfino, 6 Cal. Rptr. 3d 325 (Cal. App. 6th Dist. 2003) -- § 3, § 30
Vogel v. Felice, 127 Cal. App. 4th 1006, 26 Cal. Rptr. 3d 350 (6th Dist. 2005) -- § 25


Connecticut

Conn. Gen. Stat. Ann. § 3-125. See § 17
Hultman v. Blumenthal, 67 Conn. App. 613, 787 A.2d 666 (2002) -- § 17
Marczeski v. Law, 122 F. Supp. 2d 315 (D. Conn. 2000) (applying Connecticut law) -- § 20
Matos v. American Federation of State, County and Mun. Employees, 2001 WL 1044632 (Conn. Super. Ct. 2001) -- § 33, § 34


Delaware

Cahill v. John Doe-Number One, 879 A.2d 943 (Del. Super. Ct. 2005) -- § 5.5
Clayton v. Farb, 1998 WL 283468 (Del. Super. Ct. 1998) -- § 9
Doe v. Cahill, 884 A.2d 451 (Del. 2005) -- § 20


District of Columbia

D.C. Code Ann. § 13-423(a)(4). See § 12


Florida

Fla. Stat. Ann. § 48.193. See § 8
Fla. Stat. Ann. § 770.01. See § 5
Fla. Stat. Ann. § 770.02. See § 5
Alternate Energy Corp. v. Redstone, 328 F. Supp. 2d 1379 (S.D. Fla. 2004) (applying Florida law) -- § 8
Becker v. Hooshmand, 841 So. 2d 561 (Fla. Dist. Ct. App. 4th Dist. 2003) -- § 14
Whitney Information Network, Inc. v. Xcentric Ventures, LLC, 347 F. Supp. 2d 1242 (M.D. Fla. 2004) (applying Florida law) -- § 12
Zelinka v. Americare Healthscan, Inc., 763 So. 2d 1173 (Fla. Dist. Ct. App. 4th Dist. 2000) -- § 5


Georgia

Ga. Code Ann. § 51-5-7(3). See § 17
Ga. Code Ann. § 51-5-11. See § 4
Atlanta Humane Soc. v. Mills, 274 Ga. App. 159, 618 S.E.2d 18 (2005) -- § 20, § 21
Bates v. Variable Annuity Life Ins. Co., 200 F. Supp. 2d 1375 (N.D. Ga. 2002) (applying Georgia law) -- § 17
Hayes Microcomputer Products, Inc. v. Franza, 268 Ga. App. 340, 601 S.E.2d 824 (2004) -- § 26, § 27
Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376 (2002) -- § 3, § 4, § 20
McCandliss v. Cox Enterprises, Inc., 265 Ga. App. 377, 593 S.E.2d 856 (2004) -- § 3, § 6


Hawaii

Rossi v. Motion Picture Ass'n of America Inc., 391 F.3d 1000 (9th Cir. 2004) (applying Hawaii law) -- § 24


Illinois

DSC Logistics, Inc. v. Innovative Movements, Inc., 2004 WL 421977 (N.D. Ill. 2004) (applying Illinois law) -- § 26
Eberhardt v. Morgan Stanley Dean Witter Trust FSB, 2001 WL 111024 (N.D. Ill. 2001) (applying Illinois law) -- § 26
Fedders Corporation v. Elite Classics, 279 F. Supp. 2d 965 (S.D. Ill. 2003) (applying Illinois law) -- § 26, § 31
Micrins Surgical, Inc. v. Neuroregen, LLC, 2004 WL 1697837 (D. Md. 2004) (applying Illinois law) -- § 17


Indiana

Conseco, Inc. v. Hickerson, 698 N.E.2d 816 (Ind. Ct. App. 1998) (applying Indiana law) -- § 8


Iowa

Kiesau v. Bantz, 686 N.W.2d 164 (Iowa 2004) -- § 26


Kentucky

Booker v. GTE.net LLC, 350 F.3d 515, 2003 FED App. 0427P, 8 A.L.R.6th 753 (6th Cir. 2003) (applying Kentucky law) -- § 19
Genlyte Thomas Group LLC v. Lighting World Inc., 2000 WL 33968890 (W.D. Ky. 2000) (applying Kentucky law) -- § 8
Mitan v. Davis, 243 F. Supp. 2d 719 (W.D. Ky. 2003) (applying Kentucky law) -- § 6, § 7


Louisiana

Catfish Cabin of Monroe, Inc. v. State Farm Fire & Cas. Co., 833 So. 2d 1055 (La. Ct. App. 2d Cir. 2002) -- § 19


Maine

Ballard v. Wagner, 2005 ME 86, 877 A.2d 1083 (Me. 2005) -- § 33
Ballard v. Wagner, 2003 WL 21911157 (Me. Super. Ct. 2003) -- § 3, § 32


Maryland

Mates v. North American Vaccine, Inc., 53 F. Supp. 2d 814 (D. Md. 1999) (applying Maryland law) -- § 23
McGaw v. Biovail Pharmaceuticals, Inc., 300 F. Supp. 2d 371 (D. Md. 2004) (applying Maryland law) -- § 27


Massachusetts

Abate v. Maine Antique Digest, 17 Mass. L. Rptr. 288, 2004 WL 293903 (Mass. Super. Ct. 2004) -- § 3, § 6
McMann v. Doe, 2006 WL 3102986 (D. Mass. 2006) (applying Massachusetts law) -- § 23, § 36


Michigan

Mich. Comp. Laws Ann. § 600.2911. See § 16
Mich. Comp. Laws Ann. § 600.2911(3). See § 17, § 24
Amway Corp. v. Procter & Gamble Co., 346 F.3d 180, 2003 FED App. 0360P (6th Cir. 2003) (applying Michigan law) -- § 3, § 24
Ben-Tech Indus. Automation v. Oakland University, 2005 WL 50131 (Mich. Ct. App. 2005) -- § 31
Boladian v. UMG Recordings, Inc., 123 Fed. Appx. 165, 2005 FED App. 0006N (6th Cir. 2005) (applying Michigan law) -- § 23
Deutsch v. Berliner, 2004 WL 1882653 (Mich. Ct. App. 2004) -- § 17
Nehls v. Hillsdale College, 65 Fed. Appx. 984, 177 Ed. Law Rep. 938 (6th Cir. 2003) (applying Michigan law) -- § 16
Schultz v. Ary, 175 F. Supp. 2d 959 (W.D. Mich. 2001) (applying Michigan law) -- § 8


Minnesota

Minn. Stat. Ann. § 543.19. See § 11
Brown v. Westaff (USA), Inc., 301 F. Supp. 2d 1011 (D. Minn. 2004) (applying Minnesota law) -- § 3, § 17
Dynamic, Air, Inc. v. Boccard S.A., 2003 WL 22097789 (D. Minn. 2003) (applying Minnesota law) -- § 17
Glenn v. Daddy Rocks, Inc., 171 F. Supp. 2d 943 (D. Minn. 2001) (applying Minnesota law) -- § 16
Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002) -- § 9
Metge v. Central Neighborhood Improvement Ass'n, 649 N.W.2d 488 (Minn. Ct. App. 2002) -- § 22
Northwest Airlines, Inc. v. Friday, 617 N.W.2d 590 (Minn. Ct. App. 2000) -- § 11
Willis v. Centennial & Mortg. & Funding, Inc., 2004 WL 229076 (D. Minn. 2004) (applying Minnesota law) -- § 17, § 27


Mississippi

Lane v. Strang Communications Co., 297 F. Supp. 2d 897 (N.D. Miss. 2003) (applying Mississippi law) -- § 6
Lofton v. Turbine Design, Inc., 100 F. Supp. 2d 404 (N.D. Miss. 2000) (applying Mississippi law) -- § 8


Missouri

Fuqua Homes, Inc. v. Beattie, 388 F.3d 618 (8th Cir. 2004) (applying Missouri law) -- § 23


Montana

Knievel v. ESPN, 393 F.3d 1068, 3 A.L.R.6th 733 (9th Cir. 2005) (applying Montana law) -- § 23


New Hampshire

Gaylor v. McLaughlin, 2003 DNH 206, 2003 WL 22848929 (D.N.H. 2003) (applying New Hampshire law) -- § 23


New Jersey

Blakey v. Continental Airlines, Inc., 164 N.J. 38, 751 A.2d 538 (2000) -- § 14
Churchill v. State, 378 N.J. Super. 471, 876 A.2d 311 (App. Div. 2005) -- § 6
Dendrite Intern., Inc. v. Doe No. 3, 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001) -- § 3, § 30


New York

N.Y. C.P.L.R. 302(a)(1). See § 8, § 9, § 10
N.Y. C.P.L.R. 302(a)(3)(ii). See § 8
Bassili v. Chu, 242 F. Supp. 2d 223 (W.D. N.Y. 2002) (applying New York law) -- § 8
Computech Intern., Inc. v. Compaq Computer Corp., 2004 WL 1126320 (S.D. N.Y. 2004) (applying New York law) -- § 27
Daniels v. Alvarado, 2004 WL 502561 (E.D. N.Y. 2004) (applying New York law) -- § 17
Duane Reade Inc. v. Local 338 Retail, Wholesale, Dept. Store Union, UFCW, AFL-CIO, 6 Misc. 3d 790, 791 N.Y.S.2d 288 (Sup 2004) -- § 24
Firth v. State, 12 A.D.3d 907, 785 N.Y.S.2d 755 (3d Dep't 2004) -- § 24
Firth v. State, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463 (2002) -- § 6
Fogarty v. Transmedia Network, Inc., 2 A.D.3d 269, 768 N.Y.S.2d 332 (1st Dep't 2003) -- § 17
Hammer v. Trendl, 2003 WL 21466686 (E.D. N.Y. 2003) (applying New York law) -- § 9, § 25
Kforce, Inc. v. Alden Personnel, Inc., 288 F. Supp. 2d 513 (S.D. N.Y. 2003) (applying New York law) -- § 16
Lenahan Law Offices, LLC v. Hibbs, 2004 WL 2966926 (W.D. N.Y. 2004) (applying New York law) -- § 8
Lian v. Sedgwick James of New York, Inc., 992 F. Supp. 644 (S.D. N.Y. 1998) (applying New York law) -- § 16
Meloff v. New York Life Ins. Co., 240 F.3d 138 (2d Cir. 2001) (applying New York law) -- § 27
Penn Warranty Corp. v. DiGiovanni, 10 Misc. 3d 998, 810 N.Y.S.2d 807 (Sup 2005) -- § 5.7, § 25
Public Relations Soc. of America, Inc. v. Road Runner High Speed Online, 8 Misc. 3d 820, 799 N.Y.S.2d 847 (Sup 2005) -- § 16, § 26, § 27
Rombom v. Weberman, 2002 WL 1461890 (N.Y. Sup 2002) -- § 31
Van Buskirk v. The New York Times Co., 325 F.3d 87 (2d Cir. 2003) (applying New York law) -- § 6, § 25


North Dakota

Atkinson v. McLaughlin, 343 F. Supp. 2d 868 (D.N.D. 2004) (applying North Dakota law) -- § 12
Wagner v. Miskin, 2003 ND 69, 660 N.W.2d 593, 175 Ed. Law Rep. 772 (N.D. 2003) -- § 12


Ohio

Ohio Rev. Code Ann. § 2307.382. See § 8
Ohio Rev. Code Ann. § 2744.03(A)(6). See § 17
Cadle Co. v. Schlichtmann, 123 Fed. Appx. 675, 2005 FED App. 0095N (6th Cir. 2005) (applying Ohio law) -- § 8
Jackson v. McDonald, 144 Ohio App. 3d 301, 760 N.E.2d 24 (5th Dist. Stark County 2001) -- § 3, § 17
Sabouri v. Ohio Dept. of Job & Family Serv., 145 Ohio App. 3d 651, 763 N.E.2d 1238 (10th Dist. Franklin County 2001) -- § 6
SPX Corp. v. Doe, 253 F. Supp. 2d 974 (N.D. Ohio 2003) (applying Ohio law) -- § 21
Toledo Heart Surgeons, Inc. v. Toledo Hosp., 154 Ohio App. 3d 694, 2003- Ohio-5172, 798 N.E.2d 694 (6th Dist. Lucas County 2003) -- § 25


Oregon

Sweet v. Tigard-Tualatin School Dist. #23J, 124 Fed. Appx. 482, 196 Ed. Law Rep. 474 (9th Cir. 2005) (applying Oregon law) -- § 17


Pennsylvania

42 Pa. Cons. Stat. Ann. § 343(a)(6). See § 16
42 Pa. Cons. Stat. Ann. § 5322(a)(4). See § 15
42 Pa. Cons. Stat. Ann. § 5523(1). See § 6
American Business Financial Services, Inc. v. First Union Nat. Bank, 2002 WL 433735 (Pa. C.P. 2002) -- § 10, § 14, § 15
Barrett v. Catacombs Press, 44 F. Supp. 2d 717 (E.D. Pa. 1999) (applying Pennsylvania law) -- § 8
Carescience, Inc. v. Panto, 2003 WL 22266101 (Pa. C.P. 2003) -- § 16
English Sports Betting, Inc. v. Tostigan, 2002 WL 461592 (E.D. Pa. 2002) (applying Pennsylvania law) -- § 8
Franklin Prescriptions, Inc. v. The New York Times Co., 267 F. Supp. 2d 425 (E.D. Pa. 2003) (applying Pennsylvania law) -- § 31
Hemispherx Biopharma, Inc. v. Asensio, 2002 WL 31387765 (Pa. C.P. 2002) -- § 23
Lin v. Rohm and Haas Co., 293 F. Supp. 2d 505 (E.D. Pa. 2003) (applying Pennsylvania law) -- § 6
Melvin v. Doe, 575 Pa. 264, 836 A.2d 42 (2003) -- § 3
Morris v. Hoffa, 169 L.R.R.M. (BNA) 3082, 2002 WL 524037 (E.D. Pa. 2002) (applying Pennsylvania law) -- § 6


Tennessee

Hibdon v. Grabowski, 195 S.W.3d 48 (Tenn. Ct. App. 2005) -- § 14


Texas

Bozeman v. Watson Wyatt & Co., 2003 WL 22938953 (N.D. Tex. 2003) (applying Texas law) -- § 17
Buenrostro v. Flight Safety Intern., Inc., 2001 WL 674171 (W.D. Tex. 2001) (applying Texas law) -- § 16
David L. Aldridge Co. v. Microsoft Corp., 995 F. Supp. 728 (S.D. Tex. 1998) (applying Texas law) -- § 18, § 28
Gustafson v. City of Austin, 110 S.W.3d 652 (Tex. App. Austin 2003) -- § 18
Klein & Associates Political Relations v. Port Arthur Independent School Dist., 92 S.W.3d 889 (Tex. App. Beaumont 2002) -- § 3, § 24
Koch v. Prostep, Inc., 2002 WL 31360404 (N.D. Tex. 2002) (applying Texas law) -- § 25, § 29
Mars, Inc. v. Gonzalez, 71 S.W.3d 434 (Tex. App. Waco 2002) -- § 3, § 19
Microsoft Corp. v. Software Wholesale Club, Inc., 129 F. Supp. 2d 995 (S.D. Tex. 2000) (applying Texas law) -- § 25
Revell v. Lidov, 317 F.3d 467, 173 Ed. Law Rep. 403 (5th Cir. 2002) (applying Texas law) -- § 8


Utah

Utah Code Ann. § 63-30-4(3)(b)(i). See § 24
Becker v. Kroll, 340 F. Supp. 2d 1230 (D. Utah 2004) (applying Utah law) -- § 24
Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292 (10th Cir. 2002) (applying Utah law) -- § 23
Hydro Engineering v. Landa, Inc., 231 F. Supp. 2d 1130 (D. Utah 2002) (applying Utah law) -- § 11


Virginia

Va. Code Ann. § 8.01-328.1(A). See § 13
Bochan v. La Fontaine, 68 F. Supp. 2d 692 (E.D. Va. 1999) (applying Virginia law) -- § 13
TELCO Communications v. An Apple A Day, 977 F. Supp. 404 (E.D. Va. 1997) (applying Virginia law) -- § 13
Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604 (E.D. Va. 2005) (applying Virginia law) -- § 31, § 32, § 35
Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) (applying Virginia law) -- § 8


Washington

Boring v. Alaska Airlines, Inc., 123 Wash. App. 187, 97 P.3d 51 (Div. 1 2004) -- § 17
Hatch v. Fred Meyer, Inc., 94 Wash. App. 1024, 1999 WL 106923 (Div. 1 1999) -- § 16
Loeffelholz v. Citizens for Leaders with Ethics and Accountability Now (C.L.E.A.N.), 119 Wash. App. 665, 82 P.3d 1199 (Div. 2 2004) -- § 31


West Virginia

Yoder v. Workman, 224 F. Supp. 2d 1077 (S.D. W. Va. 2002) (applying West Virginia law) -- § 32


Wisconsin

Wis. Stat. Ann. § 895.05(2). See § 5
It's In the Cards, Inc. v. Fuschetto, 193 Wis. 2d 429, 535 N.W.2d 11 (Ct. App. 1995) -- § 5


I. PRELIMINARY MATTERS

§ 1. Scope


This annotation [fn1] collects and discusses cases dealing with individual and corporate liability for libel and slander in electronic communications, including e-mail, the Internet, and Web sites. [fn2]

Some opinions discussed in this annotation may be restricted by court rule as to publication and citation in briefs; readers are cautioned to check each case for restrictions. A number of jurisdictions may have rules, regulations, constitutional provisions, or legislative enactments directly bearing upon this subject. These provisions are discussed herein only to the extent and in the form that they are reflected in the court opinions that fall within the scope of this annotation. The reader is consequently advised to consult the appropriate statutory or regulatory compilations to ascertain the current status of all statutes discussed herein.


§ 2. Summary and comment


Many jurisdictions require that a demand must be made in writing for the retraction of the allegedly defamatory statements prior to instituting litigation. Hence, in those jurisdictions with such a requirement, a failure to comply will result in dismissal ( §§ 4, 5 ). Generally, defamation cases have a one-year statute of limitations. Most courts recognize that the single publication rule applies to defamatory statements published in the Internet, and therefore hold that the date that the defamation cause of action begins to accrue is when the statement is first published, or made available to the public. ( §§ 6, 7 ).

As many cases involving defamation on the Internet involve parties from different jurisdictions, personal jurisdiction is an important issue. Many courts have determined that when the publishing of a defamatory statement on the Internet is the nonresident defendant's sole contact with the forum, it is insufficient to establish personal jurisdiction ( §§ 8 to 11 ). However, when the nonresident has additional contact with the forum, including non-Internet contact, the courts have found that personal jurisdiction over the nonresident is proper ( §§ 12 to 15 ).

Defamation may be allegedly made over the Internet in many ways, including sending defamatory comments to someone in an e-mail transmission ( §§ 16 to 19, 26 to 29 ), by posting defamatory comments on a Web site ( §§ 23 to 25, 31 to 35 ), or through posting defamatory statements on an Internet bulletin board or chat room ( §§ 20 to 22, 30 ). Generally, liability for defamation is proper when a statement that is capable of a defamatory meaning is published to a third party, without privilege, and causes injury to the plaintiff's reputation. A qualified privilege may apply to a statement unless a showing of actual malice may be made ( §§ 17, 21, 24, 27, 32 ).


§ 3. Practice pointers


The traditional distinction today between libel and slander is that libel is written and slander is spoken. Accordingly, one party argued that Internet messages should fall into the statutory classification of slander because such messages were communicated by a mechanical or other means, as specified in the statute defining slander. The court concluded that written defamatory communications published by means of the Internet were properly characterized as libel where the messages were publication by writing and were representations to the eye. The court added that the only difference between Internet messages and traditional libelous publication such as a newspaper or handbill is the defendants' choice to disseminate the writings electronically. [fn3]

Assuming proper jurisdiction, a cause of action for defamation on the Internet may be brought against the author of the statement that was posted on a Web site or transmitted by e-mail, an employer if the individual that wrote the allegedly defamatory statement did so at work, or a company or state agency whose Web site contains the allegedly defamatory statement. [fn4] There may also be situations where the identity of the defendant is not known, as may be the case when an Internet user posts messages to a bulletin board under a user name, screen name, or a pseudonym. In such a case, the plaintiff may institute an action naming a John Doe defendant, then bring an application or motion for an order compelling the relevant Internet service provider to comply with a subpoena and disclose the identity of any anonymous individuals. In deciding whether to issue such an order, at least one court required that the plaintiff demonstrate that he posted a message to the anonymous user on the message board at issue, notifying him of the discovery request and further asked the plaintiff to identify and set forth the exact statements made by the anonymous user that the plaintiff claimed were actionable and establish that his claim met the bare minimum requirements for a defamation cause of action, and could survive a motion to dismiss. [fn5] Once the identity of the John Doe has been determined, the plaintiff may amend his complaint to reflect the true identity of the John Doe defendant. [fn6] Courts will often refuse to order the disclosure of the identity of an anonymous poster based on the constitutional right to anonymous free speech where it is clear that once the identity is disclosed, any First Amendment claim they may have had would be irreparably lost as there is no means by which to later cure the disclosure. [fn7]

Prior to bringing or defending a defamation claim, counsel for both parties should be clearly aware of any requirements to seek a correction, or demand a retraction of the defamatory statement in writing, prior to instituting litigation. The request or demand for retraction must also be directed at the appropriate party. [fn8] When a party does issue a retraction on a Web site, it is advisable to ensure that the retraction is accessible through a number of different avenues on the Web site, to increase the likelihood that the retraction will reach substantially the same audience as the original defamatory statement. [fn9]

At least one court has held that a complaint was sufficiently specific, although the allegedly defamatory e-mail was not attached, where a particular paragraph within the complaint stated that the action was premised on the e-mail, identified the nature of the alleged defamation, listed some of the persons to whom the e-mail was allegedly published, and further where the complaint alleged that the e-mail was libelous per se. [fn10]

Generally, the statute of limitations for a defamation claim is one year. [fn11] Many jurisdictions recognize the single publication rule for defamation disseminated electronically, and therefore reject the notion that each hit or viewing should be a new publication that retriggers the statute of limitations. [fn12] Accordingly, counsel should carefully consider when to bring an action. As an action begins to accrue when a statement is first made available to the public, defense counsel should examine relevant records to determine when the initial publication took place, regardless of medium.

As with any case, personal jurisdiction must be established in order for the case to proceed to trial. Very often cases concerning defamation over the Internet involve attempts to assert jurisdiction over a nonresident defendant pursuant to relevant long-arm statutes. Traditional notions of minimum contacts are examined in the context of the Internet age with varying results. As the Internet can be accessed by anyone, most courts hold that the fact that a resident has access to the Internet, and hence, a particular defamatory statement, is not sufficient in and of itself to establish personal jurisdiction over a nonresident defendant. Accordingly, defense counsel should bring a motion to dismiss for lack of personal jurisdiction, when the only contact with the forum is the defamation itself. [fn13] Plaintiff's counsel, on the other hand, should gather as much evidence as possible to establish the defendant's contact with the forum state. To prove Internet-related contacts, discovery requests should include interrogatory questions and requests for the production of documents that demonstrate the number of Web site hits from forum residents, the placement of cookies on computers within the forum, the number of listserv participants within the forum, the administration or operation of a newsgroup accessible within the forum, and the number of participants from the forum; the transmission of orders for products or services that were ordered over the Internet by forum residents; the acceptance or processing of payments through credit cards, or electronic funds transfers, from forum residents, and the placement of any hyperlinks to other Web sites active within the forum. [fn14] The plaintiff should establish that the defendant had purposely availed himself or herself of the privilege of conducting activities within the forum state, thus, invoking the benefits and protections of its laws. Where the defamatory statement is posted on a Web site, the plaintiff should take care to introduce evidence to establish that the Web site is not a passive Web site. In many instances where the courts have found passive Web sites, or a Web site where information is simply made available to those interested in accessing it, it has failed to exercise jurisdiction over the defendant for posting a defamatory statement on such a Web site. [fn15] Once a court has determined that a defendant has purposefully availed itself of the forum's laws, the burden shifts to the defendant to present a compelling argument to prove that the exercise of jurisdiction is unreasonable. [fn16]

In cases involving the media, a public controversy, or when the plaintiff is deemed a limited-purpose public figure, a plaintiff is required to demonstrate that the defendant acted with actual malice. [fn17] The plaintiff should therefore demonstrate that the defendant's statements were false and further that the defendant knew that the statement was false or that it was published in reckless disregard as to its truth. At least one court has held that the fact that a plaintiff believed his own version of a story was not enough to support a claim that the defendant was motivated by actual malice. [fn18]

Counsel should also be aware of any statutory privilege for allegedly defamatory communications that may include: privileges granted within the context of an employee investigation; [fn19] a fair reporting privilege; [fn20] or sovereign immunity for liability for loss in connection with a governmental function. [fn21] A determination of whether an allegedly defamatory statement is subject to a privilege is a question of law to be decided by the court. Generally, the privilege is qualified and may be overcome by the plaintiff by submitting evidence that the statement was made with actual malice. [fn22]

Counsel should advise clients that maintain a Web site to attempt to limit their liability for statements posted by third parties on their Web site or bulletin board through the use of disclaimers in visitor or user agreements. In addition to disclaiming responsibility for the content of defamatory statements posted by third parties, the disclaimer should warn users not to post offensive or defamatory statements and reserve the right to remove any user-supplied content at its discretion. [fn23]

When attempting to establish corporate liability for allegedly defamatory statements posted or sent by employees, generally there must be evidence that an agent of the company, acting on behalf of the corporation, communicated a false statement to a person other than a company employee or to an employee whose duties did not require receipt of the false communication, and that the communication proximately caused damages. Counsel should also be aware that an employer may have a conditional or qualified privilege that attaches to communications made in the course of investigations following a report of an employee wrongdoing. This privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate. Accordingly, it is imperative to provide details as to each person who received the e-mail and their position within the company. [fn24]

Frequently, plaintiff's counsel will seek an injunction or a temporary restraining order, claiming that the continued publication of the statement within an Internet site or bulletin board will cause irreparable harm to the plaintiff. In order to prevail, courts generally require that the plaintiff offer more than a conclusory statement that he is likely to prevail on the merits of his claim in order to consider and weigh the factors necessary for the issuance of a temporary restraining order. [fn25] Counsel should be cautioned about the possibility of creating a prior restraint on speech when seeking an injunction to prevent parties from continuing to send or post defamatory messages about a client. [fn26] In a case where former employees had sent over 13,000 messages to an Internet bulletin board about their former employer and supervisors and had vowed to continue posting disparaging comments until they died, the court held that the trial court improperly issued an injunction prohibiting the former employees from posting future untrue messages, as the injunction constituted an unconstitutional prior restraint of speech. [fn27]

II. PROCEDURAL MATTERS

§ 4. Demand for retraction--Necessary prior to instituting litigation


It has been held that a plaintiff in an action for electronic defamation must make a demand in writing to the party that published a defamatory statement prior to bringing the action.

The court in Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376, 31 Media L. Rep. (BNA) 1613 (2002), reversed the lower court's ruling that a retraction statute did not apply to electronic messages posted on an Internet chat room, and found that since the subject of the statements did not seek a retraction in writing prior to filing his complaint, he was prevented from recovering punitive damages. The statute at issue, Ga. Code Ann. § 51-5-11, provided that a defendant is permitted to prove that a retraction has been published in a regular issue of the newspaper or other publication in question. The lower court had ruled that the statute did not apply to Internet postings. However, the Supreme Court of Georgia reversed, holding that the lower court's definition failed to accommodate changes in communications and the publishing industry due to the Internet. The court rejected the lower court's reasoning that a retraction in a newspaper or broadcast on a television or radio station is more likely to reach the same audience. Rather, the court held that a retraction posted on an Internet bulletin board is as likely to reach the same people who read the original message as any retraction printed in a newspaper or spoken on a broadcast. The court also provided that its ruling treated the word publication for the purposes of seeking a retraction the same as a publication for imposing liability. As the subject of the messages asked the service provider to delete the messages and did not ask the individual who posted the messages to correct or retract the statements, he was not entitled to recover any punitive damages.


§ 5. Demand for retraction--Not necessary prior to instituting litigation


The courts in the following cases found that the plaintiff in an action for defamation by electronic medium was not required to make a demand in writing to the party that published a defamatory statement prior to bringing an action for defamation.

The court in Zelinka v. Americare Healthscan, Inc., 763 So. 2d 1173 (Fla. Dist. Ct. App. 4th Dist. 2000), held that a statute (Fla. Stat. Ann. § 770.01) requiring that notice be provided to a defendant prior to commencing an action for libel or slander did not apply where the court concluded that the notice requirement did not apply to a private individual who posted a message on a computer service that was owned and operated by someone else. Essentially, the statute provided that before any civil action could be brought for the publication or broadcast of a libel or slander in a newspaper, periodical, or other medium, the plaintiff shall serve written notice on the defendant, specifying the article or broadcast and the allegedly defamatory statements. A defendant may avoid punitive damages by the timely publication of a correction, apology, or retraction (Fla. Stat. Ann. § 770.02). The court held that the statute was clearly designed to allow for the timely retraction of erroneous information. The court held that it was not necessary for it to determine whether the Internet should be considered an "other medium" for the purposes of the statutory requirement, as the statute did not apply to this particular defendant, as he was a private individual. The court ruled that the statutory requirement applied only to media defendants, who were defined as those engaged in the dissemination of news and information through the news and broadcast media. The court also suggested that someone who maintained a Web site and regularly published Internet magazines on that Web site may be considered a media defendant. However, the court concluded that this particular defendant was a private individual who made allegedly defamatory statements on a Web site owned and operated by someone else, and therefore was not required to receive a presuit notice or an opportunity for retraction, and the trial court properly denied his motion to dismiss the defamation claim.

In It's In the Cards, Inc. v. Fuschetto, 193 Wis. 2d 429, 535 N.W.2d 11, 23 Media L. Rep. (BNA) 2082 (Ct. App. 1995), the court found that posting messages on an online bulletin board was not a periodical as that term was statutorily defined, therefore there was no requirement that the plaintiff, a sports memorabilia dealer, request a retraction of the posted messages prior to initiating a claim for defamation. Specifically, there was a statutory requirement that provided that any party claiming to have been defamed in a newspaper, magazine, or periodical must give the other party an opportunity to retract the alleged libel prior to commencing suit (Wis. Stat. Ann. § 895.05(2)). The court examined dictionary definitions of periodical and determined that it was a publication that appears on a regular basis, not infrequently or intermittently. Conversely, the court held that posting a message to an online bulletin board was a random act of communication, analogous to posting a written notice on a public bulletin board. As users of the online bulletin board could sporadically post messages at any time, and there were no set time limits as to when the messages were read, the court concluded that the posted messages on the online bulletin board were not periodicals, and hence, were not subject to the statutory requirement of an opportunity for a retraction. The court also noted that the statute was not inclusive of all forms of alleged libel as it did not apply to all writings such as personal letters, billboards, and signs. Finally, the court also noted that the statute (Wis. Stat. Ann. § 895.05(2)) had been held to apply only to print media, and not broadcast media, and held that the nature of bulletin postings on computer network services would not be classified as print. The court added that present laws were not written to manage cyberspace and that the task of addressing the phenomenon of libel and defamation on the Internet was for the legislature.


§ 5.5. Disclosure of defendant's identity

[cumulative supplement]


The following authority considered whether defamation plaintiffs made a sufficient showing for the disclosure of the defendant's identity by the internet service provider.


CUMULATIVE SUPPLEMENT

CUMULATIVE SUPPLEMENT

Cases:


Defamation plaintiffs made sufficient showing that identity of John Doe defendant who posted defamatory statements on internet blog was not discoverable by any means other than by compelling internet service provider to disclose identity, as required to be entitled to such disclosure, where, after months of trying, plaintiffs had not been able to discover defendant's identity. Cahill v. John Doe-Number One, 879 A.2d 943 (Del. Super. Ct. 2005), judgment rev'd, 884 A.2d 451, 33 Media L. Rep. (BNA) 2441 (Del. 2005).


Comment


The court in Cahill v. John Doe-Number One, 879 A.2d 943 (Del. Super. Ct. 2005), judgment rev'd, 884 A.2d 451, 33 Media L. Rep. (BNA) 2441 (Del. 2005), noted that when a plaintiff can, in good faith, allege that a user has put the internet to use as a tool for defamation, the internet user will forfeit his First Amendment right to anonymity in favor of the injured party's right to seek redress for the damage caused by the defamatory speech.


Comment


The right of a corporation to the disclosure of an anonymous internet user is discussed in Right of Corporation, Absent Specific Statutory Subpoena Power, to Disclosure of Identity of Anonymous or Pseudonymous Internet User, 120 A.L.R.5th 195.


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[end of supplement]

§ 5.7. "Published" nature of statements

[cumulative supplement]


The following authority considered whether electronic statements were "published" so as to support a claim of defamation.


CUMULATIVE SUPPLEMENT

CUMULATIVE SUPPLEMENT

Cases:


Statements contained on web site regarding provider of warranties for used cars were published, as required to support provider's claim of defamation and trade libel; statements were available on internet to those possessing web site's address and hard copies of web site were sent to many of provider's employees. Penn Warranty Corp. v. DiGiovanni, R.I.C.O. Bus. Disp. Guide (CCH) ¶; 10973, 2005 WL 2741947 (N.Y. Sup 2005).


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[end of supplement]

§ 5.9. Amendment of complaint to add operator of blog

[cumulative supplement]


The following authority addressed the propriety of an amendment of a complaint to add the operator of a blog in a defamation action arising from electronic communications.


CUMULATIVE SUPPLEMENT

CUMULATIVE SUPPLEMENT

Cases:


Plaintiff who had brought defamation action under District of Columbia law against operator of Internet blog detailing operator's social and sexual activities would be permitted to amend complaint to add as defendant operator of second blog, which had provided link to first blog, even though complaint taken as whole suggested that plaintiff placed blame for publication squarely on first operator, and even though District Court was troubled by plaintiff's desire to add defendants simply because operator of first blog had mentioned them in her responsive pleading, where proposed amended complaint alleged in part that operators acted in concert to invade plaintiff's privacy, and policy favored liberal amendments of complaints. Fed.Rules Civ.Proc.Rule 15(a), 28 U.S.C.A. Steinbuch v. Cutler, 2006 WL 3060084 (D.D.C. 2006).


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[end of supplement]

§ 6. Statute of limitations--Barred action

[cumulative supplement]


The courts in the cases that follow found that the electronic defamation actions at issue were time-barred by the applicable statute of limitations.

The court in Traditional Cat Ass'n, Inc. v. Gilbreath, 118 Cal. App. 4th 392, 13 Cal. Rptr. 3d 353, 32 Media L. Rep. (BNA) 1998 (4th Dist. 2004), found that a defamation claim was barred by the statute of limitations, as the single publication rule applied to the statements that were posted on an Internet site. After a detailed explanation of the history and purpose of the single publication rule, the court concluded that the rule applied to defamatory statements published on the Internet. The court held that under the single publication rule, with respect to the statute of limitations, publication generally is said to occur on the first general distribution of the publication to the public. The court noted that pursuant to the single publication rule, a cause of action accrued and the period of limitations commenced, regardless of when the plaintiff secured a copy or became aware of the publication. The court examined the evidence and found testimony that the Web site was not altered after May 21, 2001. In opposing the motion to strike, the court noted that the plaintiffs did not offer any evidence that contradicted that declaration or any other evidence that the statements on the Web site had been republished in other formats in the year preceding the filing of their complaint. Accordingly, the court determined for the purposes of determining the motion to strike, the cause of action for defamation arose no later than May 21, 2001, and had expired on May 22, 2002, when the plaintiffs filed their complaint, therefore was barred as a matter of law.

In McCandliss v. Cox Enterprises, Inc., 265 Ga. App. 377, 593 S.E.2d 856 (2004), cert. denied, (May 24, 2004), the court examined the single publication rule of defamation law and held that it clearly applied to cases involving the Internet, and therefore held that the statute of limitations barred the defamation claim for an article appearing on the Internet. The plaintiff, an individual who founded a social club for persons of size, brought the action alleging that a newspaper published a story and improperly attributed an unflattering caption from an adult magazine to his group. The newspaper article that described a party held by the group as "5,000 Pounds of Sex-Starved Fatties" was published in print, and was later placed in the articles archive section of the newspaper's Internet site. The court held that the trial court properly applied the single publication rule to the Internet postings, thereby barring those claims by the application of the statute of limitations. The court rejected the plaintiff's argument that because publications on the Internet are available only to those who seek them, each hit or viewing should be a new publication that retriggered the statute of limitations. In reaching its decision, the court held that since communications posted on Web sites may be viewed by anyone over an indefinite period of time, a multiple publication rule would lead to the possibility of endless triggering of statutes of limitations. The court also provided that such a result could stifle the open exchange of ideas and dissemination of information over the Internet.

The court in Mitan v. Davis, 243 F. Supp. 2d 719 (W.D. Ky. 2003) (applying Kentucky law), applied the single publication rule and held that a defamation claim based on ten statements posted on an Internet site was barred by the statute of limitations. Four of the 10 allegedly defamatory statements were posted on the Web site on October 12, 1999, and five more were added when the Web site was modified on December 7, 1999. The court held that the single publication rule would apply to the statements posted on the Web site. The court explained that the single publication rule meant that an aggregate communication can give rise to only one action in one jurisdiction, where the dissemination occurred, and further that the statute of limitations begins to run when the finished product is released by the publisher for sale in accord with trade practice. The court concluded that a statement electronically located on a server that is called up when a Web page is accessed was no different from a statement on a paper page in a book lying on a shelf that is accessed when the reader opens the book. The court therefore held that the single publication rule applied to the posted statements. As more than one year had elapsed since the statements were posted, the court ruled that the claim was barred by the statute of limitations.

The court in Abate v. Maine Antique Digest, 17 Mass. L. Rptr. 288, 2004 WL 293903 (Mass. Super. Ct. 2004), ruled that the defamation action that arose from the posting of an article, on an Internet site that first appeared on the site in 1996 was time-barred where there was a three-year statute of limitations and the lawsuit was filed on August 6, 2003. The court held that where a publication appears continuously or where multiple copies are distributed over a period of time or in different places, Massachusetts courts have adopted a single publication rule, pursuant to which the limitations period is measured as of the date upon which the work was first made widely available to the public. Recognizing precedent in other jurisdictions, the court concluded that the single publication rule applied to generally accessible Internet publications. The court ruled that to hold otherwise and treat Internet publications differently would result in the endless retriggering of the statute of limitations, thus exposing those who "publish" information on the Internet to a multiplicity of lawsuits and thereby inhibiting the open dissemination of information and ideas.

In Lane v. Strang Communications Co., 297 F. Supp. 2d 897, 132 Media L. Rep. (BNA) 2042 (N.D. Miss. 2003) (applying Mississippi law), the court found that the single publication rule applied to Internet postings, therefore an action brought more than one year after the subject articles were posted on the Internet was time-barred and the defendant publisher was entitled to judgment. The court held that the one-year limitation period in defamation actions begins to run on the date the allegedly defamatory material is first published to a third person and further that there can only be one cause of action for any single publication of defamatory material. The court added that under this rule, multiple publications of the same work do not ordinarily reset the statute of limitations, although a subsequent edition or reprinting will be considered a new publication that triggers a new cause of action and commences a new cause of action. Examining the relevant dates, the court noted that the first article was posted on the Internet on February 15, 2000, and a second article was posted by another magazine owned by the defendant publisher on April 20, 2001. The court added that the subject of the allegedly defamatory articles was aware of the publication of the articles as he purchased large quantities of the magazine, which appeared in hard copy after the Internet postings. The court concluded that since the subject of the articles did not bring his cause of action until September 3, 2002, he clearly exceeded the one-year limitations period for claims based on either Internet posting, and therefore granted the publisher's motion for summary judgment.

In Van Buskirk v. The New York Times Co., 325 F.3d 87, 31 Media L. Rep. (BNA) 1609 (2d Cir. 2003) (applying New York law), the court held that the single publication rule applied to Internet publications, therefore dismissed a defamation claim concerning an editorial page article posted on an Internet site that was brought after the applicable statute of limitations had expired. The court held that under the single publication rule, the statute of limitations for defamation begins to accrue on the earliest date on which the work was placed on sale or became available to the general public. The letter at issue was a criticism of a report broadcast by CNN. The author of the letter posted the letter on the Internet on June 8, 1998, and the defendant published a revised version of the letter as an opinion article on June 18, 1998. The individual alleging that he was defamed by that letter timely brought his suit against the newspaper, but didn't raise his claims about the letter posted on the Internet until January 14, 2000, which was clearly more than one year after the letter was posted on the Internet. The court held that pursuant to the single publication rule, the publication of a single defamatory item, even if sold in multiple copies, and in numerous places, at various times, gives rise to only one cause of action that arises when the finished product is released. As such, the court held that the cause of action arising out of the Internet posting was time-barred and was properly dismissed.

The court in Firth v. State, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463, 30 Media L. Rep. (BNA) 2085 (2002), affirmed the lower court's dismissal of the case when it held that the single publication rule applied to allegedly defamatory statements posted on an Internet site and that modifications made to the site that were unrelated to those statements did not constitute a republication for the purposes of the statute of limitations. The court noted that the lower court had directed the state to submit an affidavit from someone with personal knowledge of the date that the allegedly defamatory report was placed on the Internet, and the dates, if any, that modifications to the text of the report were made. The state responded with a date that the report was posted at the request of the Inspector General, and a statement that no subsequent modifications were made to the report. The subject of the report claimed that the state had modified the Web site by posting a report of the Inspector General about another agency. The court held that the policy reasons behind the single publication rule are even greater with the Internet, as a multiple publication rule would create the possibility of endless triggering of statutes of limitations and would have a serious inhibitory effect on the open dissemination of information over the Internet. The court explained that republication permits a retriggering of the statute of limitations, and therefore only occurs when there has been a separate, aggregate publication from the original, which occurs on a different occasion and is not a delayed circulation of the original. The court held that the justification for this rule is that the subsequent publication intends to, and actually reaches, a new audience. The court concluded that the mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper, and therefore held as a matter of law that the modification of the state's Web site was not a republication of the allegedly defamatory report. Finally, the court noted that many Web sites are in a constant state of change and are frequently posting new information. Accordingly, application of the republication rule to these facts would either discourage the placement of information on the Internet, or slow the exchange of such information, as publishers would be forced to either avoid posting on a Web site, or would use separate Web sites for each new piece of information.

The court in Sabouri v. Ohio Dept. of Job & Family Serv., 145 Ohio App. 3d 651, 763 N.E.2d 1238 (10th Dist. Franklin County 2001), found that a defamation action was barred by the one-year statute of limitations where the subject of the allegedly defamatory e-mail statements improperly filed his action in federal court and where he had six months from the discovery of the e-mail communications at issue to file in state court and failed to timely file his claim. The subject of the e-mail communication had instituted a federal action against the Ohio family agency in March 2000, and during the course of discovery became aware of the e-mail communications that he alleged defamed him. The subject of the e-mails moved to amend his federal complaint to add his defamation claim, but was informed on October 24, 2000, that his motion was denied, because the court lacked jurisdiction over the state law claim against a state agency. He then filed the present claim in state court on November 21, 2000. The court rejected the subject's arguments that the lower court erred by not considering the doctrine of equitable tolling because he attempted to amend his federal complaint in a timely manner and did not receive a ruling on his motion until after the statute of limitations had expired. In reaching its decision, the court held that there was no mechanism to transfer a case from federal district court to the Ohio court of claims, therefore it was incumbent upon the subject plaintiff to select the proper court in which to file, regardless of the fact that he was a pro se litigant. The court added that the subject of the e-mails had six months from the time of the discovery of the e-mails to file the action, but failed to do so. Accordingly, the court ruled that the lower court did not err in dismissing the complaint.


Comment


In Sabouri v. Ohio Bureau of Employment Services, 2000 WL 1620915 (S.D. Ohio 2000), the prior federal court action referred to by the court in Sabouri v. Ohio Dept. of Job & Family Serv., 145 Ohio App. 3d 651, 763 N.E.2d 1238 (10th Dist. Franklin County 2001), the court held that it lacked jurisdiction over an Ohio state official who sent an allegedly defamatory e-mail message for a defamation claim brought by the subject of the e-mail because a federal court cannot entertain a lawsuit against state officials for violations of state law unless the state has waived its immunity under the Eleventh Amendment where it did not appear that Ohio had waived that immunity. The court concluded that because defamation is a state law claim and does not give rise to a constitutional claim actionable under the Eleventh Amendment, the court lacked jurisdiction to hear the proposed defamation claim.

In Lin v. Rohm and Haas Co., 293 F. Supp. 2d 505 (E.D. Pa. 2003), on reconsideration, 301 F. Supp. 2d 403 (E.D. Pa. 2004) (applying Pennsylvania law), the court held that the one-year statute of limitations barred the defamation action based on e-mails sent more than one year prior to the institution of litigation. The court held that under Pennsylvania law, 42 Pa. Cons. Stat. Ann. § 5523(1), there is a one-year statute of limitations for defamation claims. The court noted that the employee was aware of the first allegedly defamatory e-mail on July 5, 2000, and the second by April 2001. The court concluded that the matter was time-barred as she did not file her claim until June 2002.

The court in Morris v. Hoffa, 169 L.R.R.M. (BNA) 3082, 2002 WL 524037 (E.D. Pa. 2002) (applying Pennsylvania law), held that the filing of a state court action did not toll the statute of limitations for a later-filed and distinct federal action. The court noted that under Pennsylvania law, the statute of limitations for a defamation action is one year and begins to run at the time a plaintiff's action accrues, or the date of publication of the defamatory statements. The court noted that the instant action was filed on July 6, 2001; consequently, any cause of action that accrued before July 7, 2000, would be barred by the statute of limitations. The court noted that precedent provided that the filing of an action in state court did not toll the statute of limitations against a subsequent action filed in federal court, despite attempts to distinguish the present facts. The court also noted that the complaint alleged that the defamatory remarks were repeated approximately 14 times and were published on a Web site. Noting the statute of limitations, the court held that any defamatory statements made on or after July 7, 2000, would remain actionable, and further that the filing of the present action may have tolled the limitations period on any claims involving those statements. The court held however, that since the complaint was unclear as to the exact dates the defamatory remarks were repeated, it could not conclude that they had adequately pled any actionable claims. Accordingly, the complaint was dismissed with the opportunity to file an amended complaint that definitively sets forth claims that were not time-barred. The court further noted that the plaintiff must allege, and ultimately be able to prove, that the defamatory statements were issued independent of their original publication.


CUMULATIVE SUPPLEMENT

CUMULATIVE SUPPLEMENT

Cases:


Single publication rule, under which statute of limitations for action based on defamatory statement in mass publication begins to run on date that material is published, applied to action based on alleged defamatory report posted on government website; Internet was well suited to application of single publication rule since it was rapidly becoming the current standard for mass production, distribution, and archival storage of print data and other forms of media. N.J.S.A. 2A:14-3. Churchill v. State, 378 N.J. Super. 471, 876 A.2d 311 (App. Div. 2005).


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§ 7. Statute of limitations--Did not bar action


The following authority rejected an argument that an action for defamation by electronic medium of communication was time-barred by a statute of limitations under the particular circumstances presented.

Although the court in Mitan v. Davis, 243 F. Supp. 2d 719 (W.D. Ky. 2003) (applying Kentucky law), applied the single publication rule and held that a defamation claim based on 10 statements posted on an Internet site was barred by the statute of limitations, it also held that an allegedly defamatory television investigative report that was posted on the Web site was not barred by the statute of limitations. The court held that statements published before December 29, 1999, were barred by the statute of limitations. As the report was posted on the Web site on February 25, 2000, the court held that the defamation claim based on that report remained viable.

III. JURISDICTION


A. Jurisdiction Not Found

§ 8. Allegedly defamatory comments posted on Web site--Maintained by defendant

[cumulative supplement]


The courts in the following cases found that the plaintiff failed to successfully demonstrate that the allegedly defamatory statement, which was posted on a Web site maintained by the nonresident defendant, constituted sufficient contact with the forum to assert jurisdiction pursuant to the applicable long-arm statute.

The court in Bailey v. Turbine Design, Inc., 86 F. Supp. 2d 790 (W.D. Tenn. 2000), found that it did not have the requisite jurisdiction over an individual that resided in Florida who posted allegedly defamatory statements about a competing Tennessee company and businessman on the Florida company's Web site. The court acknowledged that while a general posting on the Internet was not sufficient to establish minimum contacts, personal jurisdiction may be appropriate where there is something more to indicate that the defendant purposefully directed his activities to the forum state. The court noted that the evidence revealed that the allegedly defamatory statements were merely posted on the Web site to be viewed by whomever cared to do so. The court noted further that there was no evidence that the Florida company, or its president, had any contacts with Tennessee, other than the Web site posting. The court concluded that there was no evidence to suggest that any effort was made to reach out to Tennessee residents any more than persons residing elsewhere and further that there was no indication that any Tennessee resident, other than the plaintiff businessman, ever accessed the Web site. Accordingly, the court concluded that the plaintiff Tennessee businessman failed to demonstrate that the defendant Florida company president had availed himself of the benefits of the state of Tennessee. The court added that the defendant company attacked the plaintiff Tennessee businessman in their Web site as a competitor and not as a Tennessee businessman; therefore, since the comments had nothing to do with the plaintiff's state of residence, it cannot be said that the defamatory statements constituted actions expressly aimed at Tennessee. As the court concluded that it lacked personal jurisdiction over the Florida company president, it granted his motion to dismiss.

The court in Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154, 70 U.S.P.Q.2d (BNA) 1266 (W.D. Wis. 2004), dismissed a defamation action for lack of personal jurisdiction, where the plaintiff corporation failed to demonstrate that a nonresident's Web site provided sufficient contacts with Wisconsin to establish personal jurisdiction under the Due Process Clause. The Web site at issue was run by a limited liability corporation organized under the laws of the West Indies and was designed as forum for consumer complaints about businesses. The court provided an analysis of general and specific jurisdiction, as well as an examination of the sliding scale and effects test used by many other jurisdictions. The court held that while a Web site's level of interactivity may be a component of determining whether a defendant has purposefully availed itself of the benefits and privileges of a forum, it should not be the only factor. The court noted that the Supreme Court rejected the notion that personal jurisdiction may turn on mechanical tests long ago, and therefore the ultimate question must be whether the defendant's contacts with the state were of such a quality and nature that it could reasonably expect to be haled into court. The court examined the evidence and noted that the plaintiff corporation did not even alleged that the consumer complaint Web site company had an office in Wisconsin, did substantial business in Wisconsin, or that its agents spend any time in the state. The court added that although the plaintiff corporation alleged that the Web site solicited business in Wisconsin, it simply amounted to potential contacts where the corporation failed to show that the Web site has done anything to target Internet users in Wisconsin. Furthermore, the court held that the corporation failed to show how the defendant Web site company made such purposeful availment of the benefits of Wisconsin laws to reasonably anticipate being haled into a Wisconsin court. The court added that although solicitation of a business may support personal jurisdiction, the corporation failed to demonstrate how the Web site company had done anything such as send mailings or unsolicited e-mails to users in Wisconsin to target Wisconsin consumers. Finally, in response to the corporation's argument that a sale of a book to a Wisconsin resident through the Web site constituted a sufficient contact, the court ruled that such sale may have been sufficient if the corporation was able to show a nexus between the sale and the cause of action, other than the fact that they both occurred through the Web site. Accordingly, the court concluded that the plaintiff corporation failed to meet its burden of showing jurisdiction over the company maintaining the consumer complaint Web site, and therefore dismissed the action.

In Jewish Defense Organization, Inc. v. Superior Court, 72 Cal. App. 4th 1045, 85 Cal. Rptr. 2d 611 (2d Dist. 1999), the court held that the nonresident defendants' posting of an Internet site containing defamatory statements about the plaintiff was not sufficient to support the assertion of jurisdiction over the defendants in California. The plaintiff, a California resident, filed his complaint in California against a New York corporation, and a New York resident, alleging that the defendants posted a World Wide Web page containing statements accusing the plaintiff, among other things, of being a government informant and a snitch; a dangerous psychopath who tried to kill his mother; a kidnapper who was never charged by the police; and an anti-Semite known to entrap Jews. The court held that because the individual defendant did not conduct any commercial activities in California and did not own property in California, and further where the nonresident defendant corporation maintained its Web site solely for the dissemination of information, and did not to seek to attract readers or others to the site and did not capture or receive any information from those who may have visited its Web site, there was insufficient evidence to support the assertion of either general or specific jurisdiction over the nonresident defendants in California.

The court in Alternate Energy Corp. v. Redstone, 328 F. Supp. 2d 1379 (S.D. Fla. 2004) (applying Florida law), granted the defendant publisher's motion for dismissal for a lack of personal jurisdiction where the court found that selling subscriptions to view an informational Web site was not sufficient contact with the forum to invoke jurisdiction. The plaintiff, a Nevada corporation engaged in the development of a process to produce hydrogen for use in fuel cells, alleged that the defendant, a Michigan resident that published an independent Internet site that monitored the hydrogen fuel cell industry, defamed the Nevada corporation, by publishing negative information concerning its business on the restricted portion of his Web site. The court noted that a small percentage of the subscribers to the restricted portion of the Web site were residents of Florida. The court held that Florida's long-arm statute (Fla. Stat. Ann. § 48.193) provided for personal jurisdiction over a nonresident defendant under two sets of circumstances: specific personal jurisdiction, when a claim arises from the defendant's forum-related contacts, including committing a tortious act in Florida; and general personal jurisdiction, when the defendant's forum-related contacts are sufficiently extensive, even though the case did not arise out of those contacts. In determining whether Internet contacts satisfy the minimum contacts requirement, Florida courts have applied the Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 42 U.S.P.Q.2d (BNA) 1062 (W.D. Pa. 1997), precedent, which holds that engaging in commercial activity over the Internet constitutes sufficient minimum contacts to satisfy due process requirements, but merely posting information on the Internet does not. The court also recognized that the Fifth Circuit has held that selling subscriptions to view an informational Web site does not constitute sufficient commercial activity to invoke jurisdiction for a defamation action, when the cause of action arises out of information posted on the site. Applying the present facts, the court concluded that the Nevada corporation failed to dispute that the sale of a small number of subscriptions to Florida residents constituted the Internet publisher's sole contacts with the state of Florida and further that the Nevada corporation failed to supply affidavits or other evidence in support of its contention that personal jurisdiction existed over the Internet publisher. Consequently, the court found that selling subscriptions to an Internet site to an unknown, relatively small number of Florida residents, without more, did not constitute carrying on a business in Florida under its long-arm statute and did not constitute the commission of a tortious act in Florida. The court added that the publisher also lacked sufficient contact with the state of Florida to satisfy the due process requirements of the Fourteenth Amendment. The court added that selling subscriptions to the Web site did not constitute sufficient commercial activity to change the outcome of the case, especially in light of the fact that the alleged harm arose not out of the sale of subscriptions but out of the posted information. As the court found that there was no indication that the publisher expressly aimed its publication at the state of Florida, it determined that the publisher had not purposefully availed himself of the benefits of doing business in the forum state and could not reasonably have anticipated being haled into court here.

The Indiana appellate court in Conseco, Inc. v. Hickerson, 698 N.E.2d 816 (Ind. Ct. App. 1998) (applying Indiana law), held that the Texas defendant's discussion of the plaintiff on his interactive Web site, which included a mail link, enabling the Web site reader to send the defendant e-mail, was not a sufficient basis on which to assert jurisdiction over the defendant in Indiana. The plaintiff argued that the tortious effects of the defendant's defamatory comments were sufficient under the effects test to sustain the exercise of personal jurisdiction in Indiana, but the court held that such test is not readily applicable in cases involving national or international corporations and the Internet, because a corporation's harm is generally not located in a particular geographic location in the same manner as an individual's harm would be. In this case, the plaintiff was a national corporation with insurance subsidiaries and policyholders located throughout the United States, and the potential harm that might be incurred as a result of the alleged defamation would not only be suffered in Indiana, but throughout the nation, noted the court. The defendant's only contact with Indiana was his discussion of the plaintiff in his Web site; he did not direct any advertising, send any e-mails or letters, or make any phone calls to Indiana, and he never physically visited or resided in Indiana. The court thus held that the defendant's discussion of the plaintiff in his Web site, without any other contacts, was not a minimum contact sufficient to allow Indiana to exercise personal jurisdiction over him.

In Genlyte Thomas Group LLC v. Lighting World Inc., 2000 WL 33968890 (W.D. Ky. 2000) (applying Kentucky law), the court held that it lacked jurisdiction over a nonresident company that maintained a Web site that allegedly defamed a resident competing company and infringed on its trademark where there were insufficient contacts with Kentucky. The court rejected the plaintiff company's argument that because the nonresident company: (1) maintained a Web site that potential Kentucky customers may access; and (2) had an independent contractor representative in Kentucky who can provide catalogs and take orders, the nonresident company had established a substantial enough connection with this jurisdiction to warrant it being haled into court here. The court noted that in cases in which the contacts with the forum are based on a defendant's Web site, as was the case here, courts have looked closely at the level of interactivity occurring on the site in determining whether personal jurisdiction exists. After examining the three general categories of Web sites along a sliding scale, depending on the interactivity of the Web site, the court concluded that while a general posting on the Internet is not sufficient to establish minimum contacts, courts may find personal jurisdiction appropriate where there is something more to indicate that the defendant purposefully directed his activities to the forum state. The court noted that the nonresident company's Web site did not offer visitors to the site the opportunity to purchase its products online, nor did it provide pricing information. The Web site did provide information about its products, and allowed the visitor to request a catalog or download a catalog from the site, and also listed representatives around the country who could assist with the purchase of the nonresident company's products. The court determined that the Web site was passive in the sense that it was an information source and a business tool designed to increase the nonresident company's worldwide visibility, but that it did not target Kentucky residents, nor reach into the commonwealth to actively solicit business. The court also noted that the nonresident company had a sales representative in Kentucky, but held that it was not disputed that this representative was not an employee of its company, but rather an independent contractor who represented the nonresident company's lines. The court found that the fact that a Kentucky resident may request a catalog from an independent agent or access an informational Web site was insufficient to establish advertising and offerings for sale of the products in question in this commonwealth. The court recognized that through the Web site and its representative the nonresident company had a presence in Kentucky, but that the Kentucky company failed to show any more than that bare fact. Accordingly, the court concluded that the nonresident company's Web site did not establish sufficient contacts with Kentucky to warrant the exercise of personal jurisdiction over the nonresident as the nonresident did not transact any business or engage in soliciting of business in Kentucky even under the broadest of interpretations. Rather than dismiss the action, the court transferred the case to the United States District Court for New Jersey for all further proceedings.

The court in Schultz v. Ary, 175 F. Supp. 2d 959, 87 Fair Empl. Prac. Cas. (BNA) 744 (W.D. Mich. 2001) (applying Michigan law), held that even if a nonresident coworker's allegedly defamatory remarks, which were made in a different state, caused damage to an employee in Michigan, the remarks were not sufficient minimum contacts, as required by due process, to establish personal jurisdiction over the nonresident in a suit by the employee alleging defamation. The court ruled that the nonresident had no other contact with Michigan, and the nonresident's alleged statements concerned the employee's activities in the New Jersey bar, and further that the defamatory remarks were not made to persons in Michigan.

In Lofton v. Turbine Design, Inc., 100 F. Supp. 2d 404, 28 Media L. Rep. (BNA) 1726 (N.D. Miss. 2000) (applying Mississippi law), the court held that a Florida company's Web site was not a basis for personal jurisdiction in Mississippi where the Web site was used solely as an advertising tool, despite the fact that the Web site did contain information regarding the Mississippi plaintiff's company as a competitor. The court concluded that the Web site was passive as it simply offered photographs and information about the Florida company. The court noted that the Web site did not contain a price list for services, a contract for engagement of service, or an order form, and therefore was not designed for online shopping. Moreover, the facts established that the defendant Florida company did not have an office or employees within the state of Mississippi, did not solicit business in Mississippi, nor derived any income from Mississippi residents. The court held, therefore, that personal jurisdiction over the Florida company was not proper based on the possibility that it has the capability to do business with a Mississippi resident. Accordingly, the court granted the defendant Florida company's motion to dismiss for lack of personal jurisdiction.

The court in Lenahan Law Offices, LLC v. Hibbs, 2004 WL 2966926 (W.D. N.Y. 2004) (applying New York law), in which a diversity action for defamation based upon the content of the defendant's Web site was before the court, on the defendants' motion to dismiss for lack of specific personal jurisdiction under Fed. R. Civ. P. 12(b)(2), granted the defendant's application. The complaint alleged that the defendant's Web site "contains an interactive portion in which consumers can send questions" to the defendant, and that he will post the "verbatim questions from consumers, along with his answers, on the website." A consumer in New York, therefore, must access the Web site in Texas to both post and receive a response to his posting. The court noted that the defendant is not transmitting files into New York, and absent an allegation that the defendant is projecting himself into New York, the court could not exercise specific personal jurisdiction over him. The court also noted that the plaintiff's allegations that the defendant provided credit advice to New Yorkers for a price, even if it were sufficient to show that the defendant "transacts business" or "contracts anywhere to supply goods or services in the state," do not support any argument that the claims made in the complaint for defamation arose from those transactions or contracts to supply goods or services; rather, the complaint merely alleged that the information was posted on a passive portion of the Web site in Texas. The court noted that this is not only insufficient to show specific personal jurisdiction over the defendant, but also shows that the plaintiff failed to make a prima facie showing of how those alleged false statements arose from the defendant's transacting business in New York under N.Y. C.P.L.R. 302(a)(1).

Although the court in Bassili v. Chu, 242 F. Supp. 2d 223 (W.D. N.Y. 2002) (applying New York law), found that while the defendant company's use of the Internet for advertising and solicitation of sales coupled with sales to New York consumers was sufficient to satisfy the long-arm statute and assert jurisdiction over the nonresident defendant, the court held that the interests of the parties would be better served by transferring the venue of the action to California. The court examined N.Y. C.P.L.R. 302(a)(3)(ii) and found that the test was whether the defendant expected, or should have reasonably expected, its actions to have consequences within the state. In reaching its decision regarding jurisdiction, the court examined the defendant company's sales and found that online sales to New York customers amounted to 2.5% of total sales in 2001 and 3.5% in the year 2000. As such, the court determined that the defendant company had purposefully availed itself of the benefits of the laws of New York such that it should have reasonably anticipated being haled into court in New York to answer for the consequences of any allegedly defamatory statements on their Web site. The court also examined jurisdiction under another section of the long-arm statute (N.Y. C.P.L.R. 302(a)(1)) that required a showing of one transaction in New York to invoke jurisdiction even if the defendant never entered the state, as long as the defendant's activities in New York were purposeful and there was a substantial relationship between the transaction and the asserted claim. The court held that the plaintiff company had not met that burden, as the defamation cause of action did not arise out of any transaction in New York, nor was it sufficiently related to the business transacted.

The court in Cadle Co. v. Schlichtmann, 2005 FED App. 0095N, 2005 WL 293666 (6th Cir. 2005) (applying Ohio law), held that Ohio did not have personal jurisdiction under the state's long-arm statute, Ohio Rev. Code Ann. § 2307.382, over a website owner, who was a Massachusetts resident, based on allegedly defamatory statements made in the website about an Ohio-based debt collector; the website specifically referred to the collector's activities in Massachusetts, and nothing on the website specifically targeted or was even directed at Ohio readers, as opposed to residents of other states.

The court in English Sports Betting, Inc. v. Tostigan, 2002 WL 461592 (E.D. Pa. 2002) (applying Pennsylvania law), determined that it did not have personal jurisdiction over one of the defendant Web sites, www.theprescription.com, which was maintained by an Australian corporation and was located in Chesapeake, Virginia, where the tortious conduct occurred outside of the forum and where the posted articles were not expressly aimed at the forum. The Web site that provided sports and gambling information posted an allegedly defamatory article written by the defendant about the plaintiff, who was a citizen of Pennsylvania and owner of a Web site where users placed offshore bets online. The court held that whether an exercise of personal jurisdiction comports with due process depends upon the relationship among the defendant, the forum, and the litigation. Where the defendant is a nonresident of the forum, the plaintiff must show that the defendant has purposefully directed its activities toward the residents of the forum state, or otherwise has purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The court noted that the plaintiff did not controvert the averments in a relevant affidavit regarding the passive nature of the Web site or the defendant company's dearth of forum contacts and did not contend that the requisite contacts with Pennsylvania that could provide a basis for an exercise of general personal jurisdiction existed. Rather, the court noted it was alleged that the court had specific personal jurisdiction because the defamation was an activity outside of Pennsylvania that caused harm inside Pennsylvania and further that the defendant company purposely targeted a Pennsylvania resident with defamatory comments. The court held to invoke specific jurisdiction, a plaintiff's cause of action must arise from or relate to the defendant's forum-related activities such that the defendant should reasonably anticipate being haled into court in the forum. The court added that personal jurisdiction may be exercised over a defendant who has committed an intentional tort, such as defamation, when the forum is the focal point of the harm suffered by the plaintiff as a result of that tort and the defendant expressly aimed the tortious conduct at the forum, which may thus be said to be the focal point of the tortious conduct. Applying the present facts, the court held that the recipient audience was not linked by geography, but by a common interest in offshore sports gambling. The brunt of any harm suffered by the plaintiff corporation therefore would be in Jamaica. The court also held that even assuming that the brunt of any harm suffered by the individual plaintiff would be in Pennsylvania, there was no showing that the defendant company, through its Web site, expressly aimed the tortious conduct at the forum. The court added that there was a difference between tortious conduct targeted at a forum resident and tortious conduct expressly aimed at the forum. As the posted articles were targeted at the international offshore gambling community, it was not expressly aimed at the forum, therefore jurisdiction was not proper.

In Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 27 Media L. Rep. (BNA) 2153 (E.D. Pa. 1999) (applying Pennsylvania law), the court held that it lacked jurisdiction over the nonresident defendant where it found that the only contact between the nonresident and the forum was a Web site where the allegedly defamatory statements were posted about the plaintiff, a Pennsylvania resident who maintained a Web site that investigated health fraud. The court held that general jurisdiction was inapplicable because there was no systematic and continuous contact, despite the resident's argument that the nonresident's activities on the Web met that test, because the Web is nationally accessible. In examining whether specific jurisdiction existed, the court examined precedent in other jurisdictions and determined that the weight of the case law required something more that a Web site that acts as worldwide advertisement to trigger personal jurisdiction in a particular forum. Holding that non-Internet-related contacts may be considered, the court held that the nonresident did not participate in any such contacts with Pennsylvania residents. The court concluded that although the nonresident's Web site may include defamatory information about the resident, the fact that such information was accessible worldwide did not mean that the nonresident had the intent of targeting Pennsylvania residents with such information and further that the resident failed to produce any evidence to suggest otherwise. The court also distinguished the nonresident defendant with those in cases where jurisdiction was found, holding that she was unlike the commercial entrepreneurs who actively availed themselves of the privilege of conducting business in the forum state. Here, the nonresident did not participate in any online transactions with forum residents, nor entered into any contractual agreements through the transmission of e-mail and did not use her Web site to encourage contact with forum residents. The court also rejected the resident's argument that jurisdiction was proper because the nonresident defendant had posted the e-mails to a listserv group that could be accessed by Pennsylvania residents. The court held that unlike distributors of magazines who may affirmatively decide not to sell or distribute in certain forums, a user that posts to a listserv group on the Internet does not have the option of bypassing certain regions, therefore, the nonresident was not specifically targeting Pennsylvania residents with her posting. The court also held that e-mail communications exchanged between the parties did not trigger jurisdiction because they did not occur in a context of a substantial connection with the forum, nor did they amount to the level of purposeful targeting required under the minimum contacts test. Finally, the court held that unless Pennsylvania was deliberately or knowingly targeted by the tortfeasor, the fact that harm was felt in Pennsylvania from conduct occurring outside Pennsylvania is never sufficient to satisfy due process, therefore the simple fact that the resident suffered harm in Pennsylvania would not trigger jurisdiction. As the court determined that the resident failed to demonstrate that the nonresident had the minimum contacts with Pennsylvania necessary to impose specific jurisdiction, it granted the nonresident's motion to dismiss for lack of personal jurisdiction.

The court in Revell v. Lidov, 317 F.3d 467, 173 Ed. Law Rep. 403, 31 Media L. Rep. (BNA) 1521 (5th Cir. 2002) (applying Texas law), found that the court did not have personal jurisdiction over a Massachusetts resident or a New York university for allegedly defamatory statements posted on the university's Web site by the Massachusetts resident where the court found that the contacts with Texas were insufficient to establish jurisdiction over the nonresident defendants. The controversy arose over comments posted by an assistant professor at Harvard Medical School at Columbia University's School of Journalism's Web site about the former Associate Deputy Director of the FBI, who was a Texas resident, who therefore claimed that damage to his professional reputation occurred in Texas. The court examined the sliding scale approach for establishing jurisdiction and found that although the maintenance of a Web site is a continuous presence everywhere in the world, the contacts with Columbia University and Texas were not substantial as the record revealed that the university never received more than 20 Internet subscriptions from Texas residents. The court held that for determining specific jurisdiction it must look only to the contact out of which the cause of action arose, or the maintenance of the Internet bulletin board. The court examined the effects of the article and noted that the article posted by the assistant professor did not contain any references to Texas, the Texas activities of the former Associate Deputy Director, and was not directed at Texas readers as distinguished from readers in other states. The court concluded that Texas was not the focal point of the article, or the harm suffered. Moreover, the court ruled that the post to the bulletin board was presumably directed to the entire world, but was not specifically directed at Texas. Finally, the court noted that in an affidavit, the assistant professor stated that he did not know that the former Associate Deputy Director was a Texas resident. Holding that the defendant must be chargeable with knowledge of the forum at which his conduct is directed in order to reasonably anticipate being haled into court in that forum, the court concluded that the assistant professor's knowledge that the harm of his article would hit home wherever the subject resided was insufficient to establish jurisdiction in Texas. The court therefore affirmed the dismissal for lack of personal jurisdiction over both defendants, as the plaintiff failed to make out a prima facie case, where general jurisdiction could not be found over Columbia University and further where the court found that the contacts with Texas were insufficient to establish jurisdiction over either defendant.

In Young v. New Haven Advocate, 315 F.3d 256, 31 Media L. Rep. (BNA) 1695 (4th Cir. 2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2092, 155 L. Ed. 2d 1065 (2003) (applying Virginia law), the court found that it did not have jurisdiction over two newspapers and certain staff that published articles on their respective Web sites about transferring inmates from a Connecticut facility to a facility in Virginia, where the court found that since the Web sites and articles were aimed at a Connecticut audience, the newspapers could not have reasonably anticipated being haled into a Virginia court to answer for the truth of the statements made in the articles. The court noted that the Virginia prison warden argued for specific jurisdiction in his complaint, and therefore limited its jurisdiction analysis to that of specific jurisdiction. The court held that precedent established that specific jurisdiction in the Internet context may be based only on an out-of-state person's Internet activity directed at the forum state and causing injury that gives rise to a potential claim in that state. The court therefore held that in order to have jurisdiction over the newspapers, it must be shown that through the Internet postings the newspapers manifested an intent to target and focus on Virginia readers. The court examined the Web sites, including advertisements and determined that the newspapers' Web sites were decidedly local with a focus on Connecticut and an intent to extend their market locally and provide their local markets with a place for classified advertisements. The court concluded that the Web sites were clearly not designed to attract or serve an audience based in Virginia, and therefore the newspapers could not have reasonably anticipated being haled into court in Virginia. Accordingly, the court reversed the trial court and granted the motions to dismiss for lack of personal jurisdiction raised by the newspapers, reporters, and editors.


CUMULATIVE SUPPLEMENT

CUMULATIVE SUPPLEMENT

Cases:


Canada-based entity responsible for non-commercial Internet websites for miniature horse aficianados, and Canadian resident who operated sites, lacked sufficient contacts with North Carolina to be subject to district court's exercise of specific personal jurisdiction, consistent with Due Process Clause, in North Carolina miniature horse trainer's diversity action alleging libel and other torts arising from criticism of trainer's activities that appeared on sites; although sites were semi-interactive, and featured input or accepted membership from North Carolina residents, there was no showing of purposeful targeting of state, entity's contacts with state were de minimis, and libel allegation did not arise out of those contacts. U.S.C.A. Const.Amend. 14; West's N.C.G.S.A. 1-75.4(1)(d). Burleson v. Toback, 391 F. Supp. 2d 401 (M.D. N.C. 2005).

Origin of allegedly defamatory Internet website in forum state of Minnesota was not sufficient for court under Minnesota long arm statute to exercise specific personal jurisdiction over non-resident operator who subsequently agreed to maintain site in Canada where his computer was located, for purpose of defamation lawsuit brought against operator and Minnesota originator. M.S.A. § 543.19. Bible & Gospel Trust v. Wyman, 354 F. Supp. 2d 1025 (D. Minn. 2005).


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§ 9. Allegedly defamatory comments posted on Web site--Maintained by third party

[cumulative supplement]


The courts in the following cases found that the plaintiff failed to successfully demonstrate that the allegedly defamatory statement, which was posted on a Web site maintained by a third party, constituted sufficient contact with the forum to assert jurisdiction pursuant to the applicable long-arm statute.

In Machulsky v. Hall, 210 F. Supp. 2d 531 (D.N.J. 2002), the court determined that it did not have jurisdiction over three individuals who made online purchases on eBay and posted negative comments relative to the sale and the plaintiff, who operated a coin business on the Internet, where the court found that the coin business operator failed to meet her burden of demonstrating that the buyers targeted the forum when they posted their allegedly defamatory comments. The court held that personal jurisdiction may arise from Internet activity, but that generally more commercial activity than one online purchase is needed to show the purposeful availment of doing business within a given state. Noting that none of the buyers were residents of the forum, the court held that e-mail correspondence between the buyers and seller must be examined to determine whether jurisdiction was established. The court determined that the e-mail correspondence was minimal, and therefore was insufficient to establish jurisdiction, even when considered in conjunction with the online purchase. The court also rejected the seller's argument that the allegedly defamatory comments posted on the feedback page constituted jurisdiction as it established a substantial connection to the forum. The court concluded that the seller failed to show that the buyers directed the comments toward her as either a businesswoman in New Jersey, toward other New Jersey residents, or the forum itself, and therefore did not establish jurisdiction. The court ruled that the comments were posted to a global audience with similar interests in coin collecting and did not specifically target any of the seller's potential customers in New Jersey such that she could claim that she felt the effects as a New Jersey businesswoman. The court added that the foreseeability that the seller may suffer harm in New Jersey was not enough to support a finding that the comments were aimed at New Jersey, and therefore jurisdiction was not established.

The court in Archer and White, Inc. v. Tishler, 2003 WL 22456806 (N.D. Tex. 2003), dismissed a defamation action where it held that it lacked personal jurisdiction over a nonresident dentist who posted an allegedly defamatory statement on an Internet site about the plaintiff dentist drill manufacturing company where the court found that the dentist lacked sufficient minimum contacts with the state of Texas to permit the exercise of personal jurisdiction. The dentist, a resident of Illinois, purchased a drill through a sales representative of the plaintiff drill company, which had its principal place of business in Texas, and received it via shipment from Texas and subsequently posted allegedly defamatory statements regarding the drill on an Internet message board on the www.dentaltown.com Web site. The court held that because the Texas long-arm statute extended to the limits of due process required to establish personal jurisdiction by a federal court, the court need only consider whether exercising jurisdiction over the dentist was consistent with the Due Process Clause of the Fourteenth Amendment. The court examined the requirements of jurisdiction and noted that it need only consider the question of specific jurisdiction because the company conceded that it could not establish general jurisdiction over the dentist. The court added that specific jurisdiction exists when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action, and therefore, for the court to find specific personal jurisdiction, the defendant must have purposefully directed his activities at residents of the forum, and the litigation must result from alleged injuries that arise out of or relate to the defendant's activities directed at the forum. The court rejected the company's argument that jurisdiction existed because the dentist ordered, purchased, and received the drill directly from the company in Texas and that its claims against him arose from the posting of Web site messages concerning the equipment he purchased, that the dentist's comments were directed to Texas, and further that the company felt the effects of the messages in Texas. The court concluded that although the allegations in the messages may stem from the dentist's dissatisfaction with the drill that he purchased, none of the company's claims arose out of, or was related to, the purchase transaction itself. The court further noted that the statements about which the company complained would be actionable even had the dentist had not purchased the drill, and therefore could not be used to establish jurisdiction.

In Naxos Resources (U.S.A.) Ltd. v. Southam Inc., 1996 WL 662451 (C.D. Cal. 1996), the court said that where it could not conclude that an alleged defamatory article published on the Internet was primarily directed at the plaintiff in California, that the plaintiff was the focus of the alleged defamation, or that the defendants knew or intended that the brunt of the injury caused by the defamation would occur in the forum, therefore, jurisdiction could not be asserted over the defendant in California. The defamatory statements at issue were published in a Canadian newspaper, the primary circulation of which was to Canadian readers. In addition, the statements themselves did not refer specifically to the plaintiff, Naxos (U.S.A.), but instead referred to "Naxos Resources Ltd.," a Vancouver-based company. The court held that because there was some doubt as to whether the defamation was actually of and concerning the plaintiff, it was less foreseeable that there would be a risk of injury to the plaintiff by defamation, making the defendants' relationship to the forum state even more tenuous, thus supporting the conclusion that jurisdiction could not be exercised over the defendant in California.

In Medinah Mining, Inc. v. Amunategui, 237 F. Supp. 2d 1132 (D. Nev. 2002), the court found that it did not have personal jurisdiction over an Arkansas resident who posted allegedly defamatory messages about a Nevada corporation because he did not purposely avail himself of the privileges of conducting activities in Nevada, and therefore granted the Arkansas resident's motion to dismiss for lack of personal jurisdiction. The allegedly defamatory statement was posted on a Web site that reported financial news and maintained information on publicly traded companies. The plaintiff claimed that the Internet communication related to the integrity and business ethics of the plaintiff and further that the defendant was an Internet basher. The court noted that it was undisputed that the individual who posted the statements was a resident of Arkansas, and further that he had never done business in Nevada, did not own property in Nevada, and had never even been to Nevada. The plaintiff company had its headquarters in California, but was incorporated in Nevada. The court held that in order to establish minimum contact to establish jurisdiction, there must be some act by which the defendant purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law. The court rejected the plaintiff company's contention that the posting of a defamatory statement on a Web site that was accessible to residents of Nevada, was sufficient to meet this standard. The court held that the Web site was a passive Web site--a Web site where information is simply made available to those interested in accessing it. As there was no service being sold, and there was no affirmative commercial conduct initiated on behalf of the Web site, the court held that there was no question that the Web site was passive. The court also rejected the plaintiff company's argument that because the resident was an Internet basher it was clear that he had a commercial purpose in engaging in the alleged defamation. The court held that there was no evidence that the resident did any business with anyone in Nevada or that he directed his defamatory comments at Nevada. Moreover, the court held that there was no evidence that any Nevada residents actually accessed the alleged defamation. As the court held that there was no showing that the statements were expressly aimed or directed at residents of Nevada or that the statements were intended to cause injury in Nevada, it held that there was no purposeful availment, and therefore dismissed the case for lack of personal jurisdiction over the Arkansas resident defendant.

In Clayton v. Farb, 1998 WL 283468 (Del. Super. Ct. 1998), the court held that the mere fact that the defendant's allegedly defamatory statements could be accessed in the forum via the Internet was not sufficient to support personal jurisdiction there, especially in the absence of any other contacts with the forum. The plaintiff was a Maryland resident who alleged that the North Carolina defendant used an Internet open discussion forum, "Techdiver," to falsely accuse him of being responsible for the death of his scuba diving partner. As the one-year statute of limitations had run in both North Carolina and Maryland, the plaintiff brought his action in Delaware, contending that the access to the Internet in that state was sufficient to support jurisdiction. The court said, however, that in the absence of evidence that the defendant regularly engaged in or solicited business, or engaged in any other persistent course of conduct in Delaware or derived substantial revenue from services, or things used or consumed in the state, jurisdiction could not be asserted consistent with the state long-arm statute. The court held that the act of posting a message on the Internet from a foreign state that could be accessed in the jurisdiction by those who wished to read it was not an act that was purposely aimed at the jurisdiction, nor did it constitute transacting business, where the subject matter had nothing to do with the jurisdiction.

Reversing a lower court decision for a judgment creditor from an Alabama lawsuit for defamation by electronic medium, the court in Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002), cert. denied, 538 U.S. 906, 123 S. Ct. 1483, 155 L. Ed. 2d 225 (2003), held that the mere fact that the judgment debtor, who was a Minnesota resident, had known that the judgment creditor lived in Alabama and served as an instructor in Egyptology at the University of Alabama, and had known that the allegedly defamatory statements about the judgment creditor that the Minnesota judgment debtor posted to an Internet newsgroup would affect the judgment creditor in Alabama, did not establish personal jurisdiction in Alabama, and thus, the Alabama defamation judgment would not be enforced in Minnesota. Acknowledging that where a nonresident defendant's contacts with the forum state are not sufficient for general jurisdiction, the defendant may nonetheless be subject to "specific jurisdiction," that is, jurisdiction over a claim that allegedly arose out of the defendant's contacts with the forum, the court declared that a nonresident defendant is not subject to a foreign court's jurisdiction, under the United States Supreme Court's Calder "effects test," (Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804, 10 Media L. Rep. (BNA) 1401 (1984)), absent a showing that: (1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the harm caused by that tort in the forum, such that the forum state was the focal point of the plaintiff's injury; and (3) the defendant expressly aimed the tortious conduct at the forum, such that the forum state was the focal point of the tortious activity. Under this standard, the court said that the mere fact that the Minnesota resident judgment debtor knew that the judgment creditor lived in Alabama and served as an Egyptology instructor at the University of Alabama, and knew that the allegedly defamatory statements about the Egyptologist that the Minnesota resident posted to the Internet newsgroup would affect the Egyptologist in Alabama, did not establish that the judgment debtor expressly aimed her allegedly tortious conduct at Alabama such that Alabama was the focal point of the tortious activity, as an element for applying the Calder "effects test." The court said that the newsgroup was organized around the subjects of archeology and Egyptology, not Alabama or the University of Alabama academic community; there was no evidence that any person in Alabama or in the academic community at the University of Alabama other than the judgment creditor Egyptologist had read the allegedly defamatory newsgroup posting; and Alabama did not have a unique relationship with the field of Egyptology.

The court in Hammer v. Trendl, 2003 WL 21466686 (E.D. N.Y. 2003) (applying New York law), found that it did not have jurisdiction over a nonresident who posted an unfavorable review on the Internet about a book written by a New York resident, where the court found that the reviewer had not transacted business within New York for the purposes of establishing jurisdiction. The court held that in order to determine whether the court may exercise personal jurisdiction over the defendant, an Illinois resident, it must engage in a two-part analysis: (1) whether jurisdiction exists under the law of the forum state, in this instance New York; and (2) whether the exercise of jurisdiction under state law satisfies federal due process requirements. The New York long-arm statute, N.Y. C.P.L.R. 302(a)(1), authorized personal jurisdiction over nondomiciliaries when the defendant transacted business within New York by purposely availing himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws, and where the claims against the defendant arose out of that business activity. The court noted that the reviewer, a resident of Illinois, wrote the book reviews in Illinois and sent them to Amazon.com from his computer in Illinois. The court further noted that the book reviewer claimed that he did not transact business, or supply goods or services in New York and further that he has been to New York once for a camping trip. The court noted that the author failed to offer any facts demonstrating how the court had jurisdiction under the long-arm statute. The court held that the Amazon.com Web site could be accessed through the Internet from a computer anywhere in the world, including New York. The court found that simply posting book reviews on a Web site that can be read by New York Internet users did not demonstrate the type of purposeful activity in New York sufficient to support the exercise of personal jurisdiction. The author did not allege that the book reviewer made any sales to New York; entered into any contracts with the parties in New York; provided any services or products to sell in New York; or received any income from New York. Accordingly, the court concluded that the author failed to demonstrate that the book reviewer directed his activities at New York, and therefore granted the book reviewer's motion to dismiss the complaint for lack of personal jurisdiction.


CUMULATIVE SUPPLEMENT

CUMULATIVE SUPPLEMENT

Cases:


District court could not exercise original diversity jurisdiction over real estate developer's state law action against creator of website devoted to criticism of developer, where creator's name and citizenship were unknown. 28 U.S.C.A. § 1332. McMann v. Doe, 2006 WL 3102986 (D. Mass. 2006).

Assuming that business owner's competitor purposefully availed himself of Arizona's laws by contacting interactive computer service company located in Arizona to host his website, exercising personal jurisdiction over competitor in defamation action that owner of travel business brought after computer service company refused to remove allegedly defamatory statements posted on competitor's website would not be reasonable, as neither owner nor his competitor resided in Arizona, both parties were located in Bali, Arizona had no interest in resolving the dispute, Bali law governed owner's claim, and Arizona had no interest in the substantive law of Indonesia. U.S.C.A. Const.Amend. 14; 16 A.R.S. Rules Civ.Proc., Rule 4.2(a). Austin v. CrystalTech Web Hosting, 125 P.3d 389 (Ariz. Ct. App. Div. 1 2005).


[top of section]

[end of supplement]

§ 10. Allegedly defamatory comment published in Internet bulletin board or newsgroup

[cumulative supplement]


The courts in the following cases found that the plaintiff failed to

(C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.




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