January 2008: Issue Preview
Plaintiff Locale to Set Jurisdiction in Web Defamation Suits
By Henry R. Chalmers, Litigation News Associate Editor
As Internet communications continue to multiply, courts are repeatedly being asked whether a defamatory statement made by a defendant in one state or country can subject the defendant to suit in any jurisdiction the plaintiff may choose. The question presented is whether the court’s long-arm jurisdiction can extend to a defendant who has never set foot in the state and who typed his or her offending words thousands of miles away. The growing answer seems to be “yes,” provided the statements were aimed at the forum state.
For example, a New Jersey appellate court recently found that a foreign defendant can be subject to jurisdiction in New Jersey if the defendant targets his or her Internet statements at the state. The defendant in Goldhaber v. Kohlenberg is a California resident who made disparaging comments about the plaintiffs, both New Jersey residents, on an Internet newsgroup devoted to providing information about cruises and cruise ships. The defendant, who otherwise had no contacts with New Jersey, posted derogatory messages about the plaintiffs on the newsgroup, including allegations of incest and bestiality.
The defendant also made specific, disparaging comments about the New Jersey town in which the plaintiffs live, its police force, and the plaintiffs’ neighbors, even going so far as to post the neighbors’ addresses.
In holding that jurisdiction exists, the Goldhaber court modeled its targeting test after the “effects test” adopted by the U.S. Supreme Court in Calder v. Jones. There, the Supreme Court found that the Florida-based National Enquirer was subject to a defamation claim by the actress Shirley Jones in California because the magazine knew its statements would impact Ms. Jones in California, where it also had its largest circulation.
Bart L. Greenwald, Louisville, KY, cochair of the Section of Litigation’s Business Torts Litigation Committee, approves of this trend toward broader jurisdiction for Internet defamation claims. “Actions taken over the Internet can do damage over a broad geographic area,” Greenwald notes, arguing that “your risk of being haled into court should be similar in scope.”
However, Erica L. Calderas, Cleveland, OH, cochair of the Section’s Pretrial Practice and Discovery Committee, cautions that broad application of long-arm jurisdiction to alleged Internet defamation may threaten notions of due process. “Just because someone put something up on the Internet, does it really comport with notions of fair play and substantial justice to drag them into a far corner of the country where they had no intention of being?”
Craig C. Martin, Chicago, IL, cochair of the Section’s Pretrial Practice and Discovery Committee, shares Calderas’s concern. “It is a little odd to construe statements as being directed to a particular state when you’re talking about the Internet,” Martin says. “In many cases, the more appropriate forum is the state in which the defendant made his statements.”
Courts in several other states seem to concur with New Jersey’s approach, but some focus instead on whether the Internet site on which the statements were made is “active” or “passive.” See, e.g., Best Van Lines, Inc. v. Walker; Qwest Commc'n Int’l v. Sonny Corp.
Martin cautions that this approach requires a much more thorough factual inquiry into the “the science of the Internet and the status of the Internet site in question.”
Laura L. Prather, Austin, TX, cochair of the Section’s First Amendment and Media Litigation Committee, worries about the chilling effect that such broad jurisdiction may have on Internet communications. “The most troubling thing about the [Goldhaber] opinion,” she offers, “is the fact that it is so content-based.”
Greenwald does not share this concern. “I don’t think it stifles speech,” he says, noting that broader jurisdiction is a risk one takes when communicating on the Internet. “If you want to reach a broader market with your speech” by posting it on the Internet, “you run the risk that you will have problems in that broader market.”