IP: A Libel Suit May Establish E-Jurisdiction

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "John F. McMullen" <observer () westnet com>
Date: Mon, 27 May 2002 02:00:19 -0400 (EDT)
To: johnmacsgroup () yahoogroups com
Cc: declan () well com, Dave Farber <farber () cis upenn edu>
Subject: A Libel Suit May Establish E-Jurisdiction

> From the New York Times --
http://www.nytimes.com/2002/05/27/technology/27ELAW.html

A Libel Suit May Establish E-Jurisdiction
By CARL S. KAPLAN

Two years ago, when Stanley Young, a Virginia prison warden, learned that
two Connecticut newspapers had written stories about his prison's
treatment of inmates from that state, he went to read the four articles on
the Internet. He did not much like what he saw.

"I was a lot angry," recalled Mr. Young, head of Wallens Ridge State
Prison, a maximum-security prison in Big Stone Gap, Va. "There's a
difference between an inmate calling you an S.O.B. and newspapers
publishing false accusations and publishing them throughout the world."

Charging in a lawsuit that the articles suggested he was a racist who
encouraged abuse by his guards, Mr. Young filed a libel suit against the
two publications owned by the Tribune Company, The Hartford Courant, a
daily, and The New Haven Advocate, a weekly. (He also sued a writer and
news executive from each publication.)

But Mr. Young did not file his case in the defendant's jurisdiction.
Instead, he sued in Virginia, even though the newspapers had almost no
print circulation there.

That decision on where to sue is the nub of a legal dispute that could
reverberate nationally and internationally, lawyers say. Last year, a
federal district judge in Big Stone Gap ruled that Mr. Young's lawsuit
could proceed in his home state because the newspapers' Web sites were
accessible there and that was where injury to his reputation would have
taken place.

The defendants disagreed, and the question of jurisdiction is now pending
before the United States Court of Appeals for the Fourth Circuit in
Richmond, Va., where oral arguments are scheduled for June 3.

Advocates of free speech and news media lawyers worry that if the district
court decision stands, online publishers could be sued for defamation in
any state or country that an online article is read. "The danger is that a
doctrine of this sort could cause publications large, small or medium to
decline to put on their Web pages material that might offend a person in a
remote jurisdiction," said Robert M. O'Neil, director of the Thomas
Jefferson Center for the Protection of Free Expression, in
Charlottesville, Va.

Mr. O'Neil is a co-author of a brief in support of the defendants that was
also signed by 26 media companies and trade associations, including The
New York Times Company, The Associated Press and the Washington Post
Company.

The backdrop to the Young case is the public debate that surrounded
Connecticut's decision in 1999 to begin sending inmates from its own
prisons to high-security prisons in Virginia, including Wallens Ridge.

Newspapers in Connecticut closely followed the prison relocation. On March
30, 2000, The New Haven Advocate published in its print and Web versions a
news article by a reporter, Camille Jackson, about the prison transfers
and reports of harsh conditions at Wallens Ridge. Around the same time,
The Hartford Courant published on its Web site three newspaper pieces by a
columnist, Amy Pagnozzi, that questioned Connecticut's prisoner-relocation
policy and reported on inmate letters that spoke of mistreatment by prison
guards.

Gail Thompson, a defendant and the publisher of The Advocate, declined to
comment on the case. The two reporters Ms. Pagnozzi and Ms. Jackson, who
are also defendants, did not respond to phone calls or e-mail messages.
Brian Toolan, editor and senior vice president of The Courant as well as a
defendant in the case, said that he was surprised by the lawsuit. "You try
to be as diligent as you can be on the editing and are always taken aback
when someone chooses to sue you," he said.

In their appeal, lawyers for the Tribune Company, which is based in
Chicago, argue that Virginia should not have jurisdiction in the Young
case because, beyond the fact that their Web sites can be viewed there,
the publications have no real contact with the state.

"All publications and all news and information sites have a certain
audience that they target," said Stephanie S. Abrutyn, a lawyer with the
Tribune Company. The Courant's Web site exists clearly to publish
information in and about Connecticut, she said. Likewise, the Advocate's
site is aimed at readers in and around New Haven. In neither case did the
defendants not take any steps to open themselves to litigation in Virginia
nor did they have the "minimum contacts" with the state that the Supreme
Court requires in jurisdictional matters, she said.

But other lawyers believe that libel law has its own peculiarities when
applied to the Internet.

Dan L. Burk, a University of Minnesota law professor who has written about
online jurisdiction, said that the law views a publisher as intentionally
directing harm to the place where the libel victim's reputation matters
where he or she lives, and where his or her friends read the articles. The
mere posting of a possibly libelous article is enough to merit
jurisdiction in the state where the plaintiff resides, he said. "I'd love
to see the Supreme Court revisit that, but as the law stands now, that is
what it says," Mr. Burk noted.

The law as it is generally interpreted makes sense to Mr. Young, the
warden. "I've never been to Connecticut in my life," he said. "These
articles came to Virginia. These articles came to my community."

If the appeals court affirms jurisdiction in the case, regional or local
news publications may have to be more careful about what they post online.
Lawyers say that national news organizations might be less likely to
self-censor their Web postings because in all likelihood they are already
subject to jurisdiction in every state owing to their countrywide print
circulations. But even national newspapers may have to worry about being
sued in libel-friendly countries where their online articles can be read,
other lawyers say.

Recently, for example, Barron's, the financial weekly based in New York,
which circulates a small number of print copies to Australia, was taken to
court in the state of Victoria. A Melbourne businessman, Joseph Gutnick,
said that he was libeled in an article in October 2000 about his business
dealings with religious charities which was posted on Barron's Online, a
feature of a subscription-based Web site operated by Dow Jones & Company.

Dow Jones acknowledged that it had several hundred online subscribers in
Victoria but argued that the case should be heard in New Jersey, where its
Web computers are based.

A lower court in Victoria ruled in Mr. Gutnick's favor last August,
concluding that it had jurisdiction in the case because the online article
was read in Victoria, and thus "published" there. The issue is being
appealed to Australia's highest court, which is scheduled to hear
arguments tomorrow in Canberra.

Matthew Collins, an Australian lawyer who has written on Internet libel,
said a decision by a United States appellate court affirming Mr. Young's
jurisdictional claim could bolster judges in Australia and elsewhere.
American courts, he said, are widely regarded as being the most protective
of free expression, and a ruling adverse to news media interests would
carry weight.

In any event, Mr. Collins advised publishers, "If you want to publish on
the Internet material targeted to the reputation of a foreigner, you'd
better have regard for the standards of law where the foreigner resides."

Copyright 2002 The New York Times Company


   "When you come to the fork in the road, take it" - L.P. Berra
   "Always make new mistakes" -- Esther Dyson
   "Be precise in the use of words and expect precision from others" -
    Pierre Abelard
                          John F. McMullen
   johnmac () acm org ICQ: 4368412 Fax: (603) 288-8440 johnmac () cyberspace org
                  http://www.westnet.com/~observer


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