Uses of defamation and other laws to squelch free speech have
been dubbed SLAPPs (Strategic Lawsuits Against Public Participation)
- See the California Anti-SLAPP Program at www.casp.net
The right of a free press is guaranteed in the First Amendment
of the Bill of Rights and in Article 1 §7 of the Pennsylvania
Constitution. However, this does not give people the right to say
or publish anything they want.
Rights of defamed (slandered or libeled) persons are often held
by the courts to be more important than other parties' freedom
of speech and expression so care must be taken.
Libel occurs when a false and defamatory statement, article, headline,
opinion or letter to the editor is published which tends
to harm a person's reputation or expose him or her to public hatred,
contempt or ridicule.
Truth is a defense, but good intention in reporting an untruth
is not. Remember, there may be a vast difference between what's
true and what can be proved to be true to a jury. A retraction
is not a defense to a libel action but serves merely to mitigate
or lessen damages.
The fact that a person is quoted accurately is not in itself a
defense to a subsequent libel action if the quoted statement contains
false information about someone.
If an error has been made, always handle demands for retractions
that come from a lawyer for a potential plaintiff with the advice
of legal counsel as a well -meaning but unnecessary or poorly worded
correction may actually prejudice your defenses in a subsequent
In a Pennsylvania libel case, my interpretation is that the plaintiff
has the burden of proving the following:
- The printed statements are defamatory.
- The defendant published them..
- They apply to the plaintiff.
- The reader understands the defamatory meaning.
- The reader understands that it applies to the plaintiff.
- The plaintiff was harmed by the publication
- If an article that creates the impression that the plaintiff's
actions were worse than what a complaint implies, the "fair
report" privilege will be forfeited.
The defendant must prove at least one the following to avoid liability
- The [substantial] truth of the defamatory communication.
- The privileged character of the occasion on which it was published
(such as Pennsylvania's "fair report" privilege).
- The character of the subject matter of defamatory comment is
of public concern (an interest of social importance).
In a Pa. libel action, no damages may be recovered unless it has
been established that the publication has been maliciously or negligently
made. Then, the jury may award damages as they deem proper.
Defenses to Libel:
Justification a defense
(42 Pa. C.S.A. § 8342): If a publication is substantially
true, is of public interest (some interest of social importance
such as termination of public employees or other political disputes),
and is not maliciously or negligently made (knowing it was false
or with serious doubts about its truth) then a defense exists to
any libel claims.
Newspapers Inc. v. Hepps, 475 U.S. 767, 12 Med. L.
Rptr. 1977 (1986), the Supreme Court struck down a Pennsylvania
Law which had required the media defendant to prove the truth
of an article as a defense to a libel claim. Now it is the
plaintiff's burden to prove falsity as well as fault rather
than the defendant's burden to prove truth.
Consent: Consent to publication creates an absolute
privilege against a plaintiff's defamation claim. However, the
publication must be within the scope of the consent given by the
defamed person. Consent of another to the publication of defamatory
matter concerning him is a complete defense to his action for defamation. The
privilege conferred by the consent of the person about whom the
defamatory matter is published is absolute. The protection given
by it is complete, and it is not affected by the ill will or personal
hostility of the publisher or by any improper purpose for which
he may make the publication.
Fair Report Privilege: A case-law privilege
has evolved in Pennsylvania courts that permits the press to publish
accounts of official proceedings or reports even when they contain
defamatory statements so long as the accounts present a fair and
accurate summary of the proceedings.
Reporters can publish accounts of court documents (such as complaints)
and search warrants used in public investigations. The privilege
will be upheld if the published account produces the same effect
on the mind of the reader that the precise truth would have produced. If
the published account is a fair and accurate rendition of the document
used to base the story upon and does not carry a greater "sting" than
the document itself, the privilege protects the newspaper from
any liability for libel.
Lehigh Bank v. Cowen, 700 A.2d 498, 26 Med. L. Rptr.
1075 (Pa.Super., 1997). (Pennsylvania's "fair report" privilege
protects newspapers when they print fair and accurate information
taken from private civil complaints upon which no judicial
action has been taken).
A “public official or figure" can only recover damages for
libel by proving that a defamatory statement was published either
with actual knowledge of its falsity or with “reckless disregard" of
whether it was true or false.
“Public figures" are individuals who have either assumed
roles of special prominence in the affairs of society or who occupy
positions of such persuasive power and influence, or achieve general
fame and notoriety.
The expanded New York Times rule denies a cause of action in defamation
to public officials and public figures unless they can prove knowledge
of the falsity of the statement or reckless disregard whether the
statement was true or false. Even then, only special damages are
If a private citizen is the plaintiff in a matter of public interest,
each state can impose its own standard of liability so long as
strict or absolute liability is not imposed. Therefore they cannot
succeed in a case against the media unless they show either negligence
or reckless disregard for truth, and even that depends on where
Besides making distinctions between public and private figures,
American courts also have ruled that various kinds of published
information are generally immune from libel charges.
For example, it is almost impossible for a writer to be found
guilty of libel if the writing deals with opinions rather than
facts. "Under the First Amendment, there is no such thing
as a false idea," the Supreme Court said in a 1974 libel ruling.
In Gertz, the court distinguished between false statements of
facts and opinions. While opinions can best be countered by other
opinions, “there is no constitutional protection for false
statements of fact."
In order to obtain punitive damages, a private plaintiff must
meet the New York Times standard by proving that the defamation
was published either with actual knowledge of its falsity, or with
reckless disregard as to its truth or falsity.
The American position is that strict liability in defamation contravenes
the freedom of speech provision of the First Amendment.
For more info on handling Libel Issues, Cease and Desist Demands
and Digital Rights Issues which affect web site operators visit Chilling Effects.
If it is a "Defamation or Libel Lawsuit" be sure
to check for "SLAPP statutes" in your state (S.L.A.P.P.
- Strategic Lawsuits Against Public Participation).
US Const, Am 1
Torts - Defamation - Defense - Harmless - Reputation Already
A person's reputation may be so low that no allegedly defamatory
statement could realistically impair his reputation. Such a person
may not pursue a defamation claim. In this case, the plaintiff
physician began a public campaign promoting assisted suicide, including
assisting in numerous suicides. The defendant general counsel for
the defendant American Medical Association sent a letter to the
Michigan Attorney General and to the defendant Michigan State Medical
Society stating that the plaintiff perverted the idea of a caring
physician, served as a reckless instrument of death, posed a great
threat to the public, and engaged in criminal practices.
In addition, the defendant officers of the AMA issued a news release
which alleged continued killings and criminal activities by the
plaintiff, and the MSMS distributed the statements made by the
AMA. The plaintiff brought suit against the defendants for defamation.
The plaintiff was a public figure, and the defendants' speech pertained
to matters of public concern, and thus the speech is entitled to
Regardless, the statements do not by implication or otherwise
inflict harm on the plaintiff's reputation. The plaintiff was already
notorious, and the effect of any defamatory statement would thus
be minimal. Under the circumstances, the plaintiff cannot maintain
an action for defamation.
Torts - Defamation - By Implication - Liability
A claim for defamation by implication faces a severe constitutional
hurdle. Principles of general libel law and the First Amendment
continue to apply. Liability for true speech on matters of public
concern is prohibited, and liability may not be imposed on a media
defendant for facts it publishes accurately and without material
omissions about public affairs.
A defamation defendant cannot be held liable for the reader's
possible inferences, speculations, or conclusions when the defendant
has not made or directly implied any provably false assertion and
has not, by selective omission of crucial facts, misleadingly conveyed
any false implication.
Libel, plea of justification611.
(1) An accused who is charged with publishing a defamatory libel
may plead that the defamatory matter published by him was true,
and that it was for the public benefit that the matter should have
been published in the manner in which and at the time when it was
Where more than one sense alleged (2) A plea that is made under
subsection (1) may justify the defamatory matter in any sense in
which it is specified in the count, or in the sense that the defamatory
matter bears without being specified, or separate pleas justifying
the defamatory matter in each sense may be pleaded separately to
each count as if two libels had been charged in separate counts.
Plea in writing(3) A plea that is made under subsection (1) shall
be in writing and shall set out the particular facts by reason
of which it is alleged to have been for the public good that the
matter should have been published.Reply(4) The prosecutor may in
his reply deny generally the truth of a plea that is made under
this section. R.S., c. C-34, s. 539.
1.. Causation and Harm.
The phrase, "No harm, no foul," currently in vogue,
applies to a certain degree to the civil action of defamation.
It is not enough, usually, for the plaintiff to seek a monetary
award from the defendant on the basis that he has been defamed
without some showing, however minimal, that the defamatory statement
was the cause, directly or "proximately," (3) of some
measurable form of injury to reputation. Thus, if none of the individuals
hearing the defamation interpret it as defamatory, the courts have
held that the plaintiff has not proved his case. An admitted thief
could hardly claim that his reputation had been damaged by the
statement that he is a thief. However, if he were to be accused
falsely of being a sex pervert, he may have a claim for damages.
The adage, "there is honor among thieves" implies that
a thief has a reputation the law will protect even if it is limited
to his reputation among other thieves.
Damages for Injury to Reputation.
It is in the area of damages that the old distinction between
libel and slander makes a difference. Where the defamation takes
the form of a libel, that is, a more permanent form of statement
than the spoken word, the majority of courts presume nominal damages,
and the plaintiff is relieved of the necessity of showing actual
monetary harm. Where the defamation is an oral utterance only,
that is, a slander, most courts hold that the plaintiff may not
recover unless he proves "special damages," that is,
injuries actually suffered by the plaintiff, such as loss of employment
or business, failure of any firm expectancy including gifts, bequests,
or the bestowing of favors.
The only exception to the rule that the plaintiff must prove special,
or actual damages caused by a slander, is where the slander is
deemed by the law to be so egregious as to amount to a presumption
that the plaintiff has been injured by it. This is known as "slander
per se," and is limited to the following types of utterances:
(1) where the defendant has charged that the plaintiff has committed
a serious, morally reprehensible crime, or that he has been incarcerated
in a prison for such a crime; (2) where the defendant imputes a
presently existing loathsome, communicable disease to the plaintiff
(historically limited to venereal disease and leprosy, although
it would clearly include AIDS today); (3) where the defendant has
attributed to the plaintiff conduct, characteristics or associations
incompatible with the plaintiff's business, trade, office or profession
such that the natural and expected consequence of anyone who hears
it and believes it true, would refuse to do business, or cease
doing business with, the plaintiff; (4) and (4) where the defendant
imputes unchastity to a woman. (5)
1.. Defenses to the Defamation Action.
Equally logical is the defense of truth. That is, if the statements
made about the plaintiff are true, the fact that they were injurious
will not matter, since society has an interest in protecting and
encouraging truthful speech. The majority of courts hold that if
the defendant proves that his statements were true, it does not
matter if his purpose was to hurt the plaintiff, or even that he
did not personally believe his statements to be true at the time
he made them. (6) In such a case, however, there may be liability
for other personal injury, such as intentional infliction of emotional
distress, or wrongful invasion of privacy.
The question, "what is the truth?" is pertinent here.
Is it necessary that the defendant prove that every single aspect
of the statement is absolutely true in every detail? Most courts
have held that the defendant must present and prove facts having
the basic "sting" of the original charge, but not necessarily
the literal truth of every phrase of the original charge. Thus,
if the original charge stated that the plaintiff bilked "hundreds
of people out of their life's savings through a fraudulent investment
scheme," most courts would hold that proof of the existence
of eighty-five such individuals, would be sufficient to sustain
the defense of truth. At the same time, proof of the commission
of a completely different, though morally reprehensible act, for
example, that the plaintiff robbed a liquor store and shot the
owner, will not excuse the defamation if it is untrue. As we noted
above, even thieves have some reputation that the law will protect.
1.. Privileges to Defame
The law recognizes that there can sometimes be a tradeoff between
the interest the state has in protecting a person's reputation
in the community, and other social objectives, such as ensuring
that the processes of government and the courts work effectively
and preserve domestic accord. Accordingly, there are certain privileges,
both absolute and conditional, that protect defamatory speech.
Much of the litigation over defamation revolves around whether
the defendant had a privilege to utter the defamatory words in
question, or if he had a privilege, whether it was lost by previous
or subsequent actions. We will deal first with those privileges
recognized at common law.
1.. Absolute Privileges.
Privileges at common law were divided into two sorts: absolute
and conditional. An "Absolute" privilege is one that
cannot be lost due to the improper motives of the speaker. The
usual reason cited for an absolute privilege is that some greater
public policy is being served that outweighed the relative merits
of such a defense in any particular case.
The rationale for the absolute privilege is the belief that justice
may not be served if parties or witnesses are afraid to come forward
to testify or file claims if they think they could be immediately
sued, and be required to defend against a claim of defamation for
having done so. Since the statements that are privileged are subject
to judicial scrutiny and review, as well as testing by the opposition
through cross-examination, it is believed that adequate protections
against fraud are available.
1.. Conditional Privileges.
Conditional privileges are those which, while serving some important
governmental interest, can be asserted only when uttered or published
for proper motives, and where such publication was not excessive.
Either an improper motive or unnecessarily wide dissemination of
the defamatory statement can defeat the privilege.
Wide dissemination or excessive publication can defeat a conditional
privilege where the defendant does not exercise care to publish
the defamatory statement only to those who are privileged to hear
it. For example, speaking in a loud voice, or addressing a letter
to the editor of a newspaper concerning a person who is not a public
figure, when it should have been addressed to a much smaller audience
could defeat the conditional privilege. And while statements made
by managers to their secretaries in dictation of a letter to a
third party are privileged by necessity, speaking in a loud voice
so that others overhear the defamation loses the privilege.
The courts have not always been in agreement as to what constitutes
an "improper motive." Clearly, however, where the party
knows the factual statement to be false, or does not care whether
it is true or false, one would conclude that the motive in making
such a statement is improper. We shall reexamine this element below
when Constitutional defenses to defamation are examined.
At common law, the courts recognized a number of conditional privileges.
Among these was the fair reporting of proceedings, statements made
by local governmental officials, statements made for the purpose
of protecting either the public or a private interest, and fair
comment and criticism.
Protection of the public interest.
The law recognizes that citizens may mean well but sometimes be
mistaken in their belief of certain facts that form the basis of
a defamation. Accordingly, where the defendant has acted to protect
the public interest by stating facts about a third person that
turn out to be false, he or she is nevertheless privileged to utter
the defamation if he or she honestly believes the truth of the
For example, if Mr. Adams saw a person whom he honestly believed
to be Mr. Baker, commit a crime, his reporting of that crime to
the police and naming the perpetrator as Mr. Baker are privileged
if it later turns out that the guilty party was not Mr. Baker,
but rather Mr. Carlson.
Protection of a private interest.
There is a conditional privilege to defame where the defendant
has a reasonable belief that some important interest in person
or property is threatened (it need not be his own), and if the
statement is reasonably related to this interest, and the defendant
reasonably believe that the person to whom the defamation was published
was in a position to protect or assist in the lawful protection
of that interest.
Generally, the courts require that there be some sort of relationship
between the defendant and the person to whom the defamation is
published. This can be a family relationship, a business or employment
relationship. The existence of such a relationship tends to demonstrate
the bona fides of the defendant's beliefs. (11) A statement made
by a mother to her daughter, "Don't get involved with John
Doe; I've heard that he was jailed for beating his ex-wife" would
be conditionally privileged (assuming no improper motive by the
mother) because of the family relationship between them and the
likely concern the mother has to protect her daughter's interests.
Similarly, if an employee tells his employer that the plaintiff
is stealing from the employer, the relationship has been established
and the person to whom the defamation is published is in a position
to protect the interest.
The courts have held that, where there is no such relationship,
there may still exist a conditional privilege to defame, if the
defamation is made in response to a request for information made
by the person to whom the defamation is published.
Thus, when a prospective employer contacts a former employer,
asking for information about a job applicant, statements made by
that former employer about the job applicant are privileged if
related to the information requested, and are not made with malice
(in this case, knowingly false and from a desire solely to injure
the plaintiff). In some jurisdictions, a former employer may volunteer
such information, rather than responding to a request, and still
not lose the privilege.
Fair Comment and Criticism.
Perhaps one of the most significant privileges, usually available
only to the media is the privilege of "fair comment and criticism." The
privilege generally extends only to opinions expressed about matters
of public interest. What is a matter of public interest has been
held to be fairly broad: public officials and candidates for public
office, public institutions, public or private schools and their
faculties, objects of art and science, and persons espousing theories
about art and science, entertainers and other "public figures."
(12) So long as the matter discussed is of legitimate public interest,
and the comment expressed by the defendant is his or her honest
opinion, the defendant is privileged, even though the opinion expressed
is cruel or disparaging. Thus, a movie critic's scathing review
of the motion picture, "Titanic," is normally protected
even if it includes harsh opinions of the acting ability of Leonardo
DiCaprio or the directing ability of James Cameron.
In other situations not involving public officials or public figures,
an opinion based on false facts might not be privileged unless
the opinion expressed is a reasonable one, and the defendant honestly
believes the facts on which the opinion is based to be true.
As noted above, the development of Constitutional limitations
on common law defamation arose over the concern for protecting
the political process. If those in power can silence any public
criticism by means of a defamation suit, they could perpetuate
and increase their power.
One could easily imagine a situation where the misconduct of President
Nixon, with respect to the 1972 Watergate break-in and subsequent
coverup, or the morally questionable conduct of President Clinton
and Monica Lewinsky would never have come to the public's attention,
if the media engaged in self-censorship for fear of huge damage
awards in a defamation suit.
Documented facts in both cases of attempts to suppress evidence
of wrongdoing or in blaming such stories upon a "vast, right-wing
conspiracy" demonstrate that if those officials had greater
power to suppress speech, they would use it to stay in power.
It soon became evident that, at least in the United States, not
all persons who are in a position to wield power affecting the
lives of ordinary citizens hold public office. Rather, there are
individuals in the private sector who, either because of their
backgrounds or activities, become involved in public controversies.
Two cases, following three years after New York Times, extended
the Times rule to what became known as "public figures."
Distinguishing Between Public Figures and Private Persons.
While a majority of the Supreme Court had agreed that the New
York Times case extended to public figures, the individual Justices
could not agree on a rationale. It was not until 1974, in Gertz
v. Robert Welch, Inc. (31) that a majority opinion could be obtained
on the definition of public figures and the rationale for lessening
their rights under the common law of defamation.
The definitions and justifications offered up in the Butts-Walker
opinions were blended in Justice Lewis Powell's majority opinion
in Gertz. Public figures, said the majority opinion, are those
who are especially prominent in society, and thereby "invite
attention and comment." (32) Public figure status may be accorded
(1) Those persons who by
(a) occupying positions of "persuasive power and influence" (33)
(b) their "pervasive involvement in the affairs of society," (34)
(c) the "notoriety of their achievements" have acquired
such fame or notoriety in the community that they are deemed public
figures for all purposes and in all contexts; (35) or
(2) More commonly, public figure status may be accorded to those
persons who "have thrust themselves to the forefront of particular
controversies in order to influence the resolution of the issues
involved." (36) Such individuals thereby become public figures "for
a limited range of issues." (37)
A third area of traditional defamation law which the Supreme Court
has modified, is the notion that the "press," that is,
the mass media, is entitled to greater First Amendment protection
than private speakers who become defendants in defamation actions.
Negligence is the standard of fault most often applied in civil
cases. The plaintiff in a personal injury case, for example, has
the burden of persuading the jury that the defendant acted negligently,
that is, breached his or her duty, as a reasonable citizen, to
exercise due care with regard to other members of society.
Usually, the question of negligence centers around whether or
not the defendant should have foreseen that his or her actions
would likely cause injury to another. Foreseeability and probability
are both operative in assessing negligence. In the context of a
defamation case, a plaintiff would be required to prove that the
publisher or broadcaster acted reasonably in gathering the information
for the news story, reviewing and checking its accuracy, and in
If, for example, a newspaper defendant neglected to check the
accuracy of a reported story which had defamatory overtones, when
its standard policy was to seek further verification or collaboration
(or where the media industry as a whole routinely engaged in such
fact-checking) it could be concluded that the newspaper was negligent,
and thus at fault.
Some jurisdictions distinguish between ordinary negligence and
gross negligence. Gross negligence denotes a more significant departure
from the standard of care to which society holds all of its adult
citizens, and, while there is no way it can be quantified, one
can imagine that it posits a situation where the harm to another
(in this case, harm to one's reputation) is so foreseeable that
to fail to exercise care in ensuring that statements made about
the defendant are, in fact, accurate, would be universally regarded
as a dereliction of the duty of care. (48)
Some states regard "gross negligence" as equivalent
to recklessness, the minimum standard of fault that a public official
or public figure plaintiff must prove in order to recover damages
in a defamation suit. Other states have held that recklessness
is a more serious dereliction of duty, since the defendant is charged
with some level of awareness that the facts forming the basis of
the defamation, could be untrue, but not caring, one way or the
other, whether those facts were false.
Finally, the law recognizes intentionality as the highest level
of fault. Analyzed within the context of a defamation action, "intentional
fault" means that the defendant knows the facts uttered to
be untrue, yet disseminates them anyway. The motive for doing so
(what courts have referred to as "malice"), is not actually
an element of proof, but may be used to prove intent to injure:
If the defendant had something to gain by spreading falsehoods
about the plaintiff, proof of that motive could help establish
that the defendant knowingly defamed the plaintiff. And, as noted
above, proof of intent to injure can justify an award of punitive
While it might seem clear from the Gertz case, that the traditional
common law presumption that defamatory statements are false (thus
placing the burden on the defendant to prove the truth of the matter
stated), it was not until 1986 that the Court specifically held
that, with respect to alleged defamations of private individuals
by media defendants, the burden was on the plaintiff, that is,
the private individual, and not the media defendant, to prove the
falsity of the facts on which the defamatory statement was based.
[T]he need to encourage debate on public issues that concerned
the Court in the governmental-restriction cases is of concern in
a similar manner in this case involving a private suit for damages:
placement by state law of the burden of proving truth upon media
defendants who publish speech of public concern deters such speech
because of the fear that liability will unjustifiably result....
Because such a "chilling" effect would be antithetical
to the First Amendment's protection of true speech on matters of
public concern, we believe that a private-figure plaintiff must
bear the burden of showing that the speech at issue is false before
recovering damages for defamation from a media defendant. To do
otherwise could "only result in a deterrence of speech which
the Constitution makes free." (51)
In a case with major implications in the age of cybercommunications,
the New York Court of Appeals Tuesday held unanimously that the
single publication rule applies to allegedly defamatory materials
posted on the Internet. It also said Web site alterations unrelated
to the offending article do not constitute republication for statute
of limitations purposes.
"[A] multiple publication rule would implicate an even greater
potential for endless retriggering of the statute of limitations,
multiplicity of suits and harassment of defendants," Levine
wrote. "Inevitably, there would be a serious inhibitory effect
on the open, pervasive dissemination of information and ideas over
the Internet, which is, of course, its greatest beneficial promise."
Similarly, the court flatly rejected the argument that alterations to
a Web site amount to republication.
"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," Judge Levine wrote. "A rule applying the republication
exception under the circumstances here would either discourage the placement
of information on the Internet or slow the exchange of such information, reducing
the Internet's unique advantages. In order not to retrigger the statute of limitations,
a publisher would be forced either to avoid posting on a Web site or use a separate
site for each new piece of information. These policy concerns militate against
a holding that any modification to a Web site constitutes a republication of
the defamatory communication itself."
Narco News is... entitled to Heightened Protection"
"This court finds that Narco News is a media defendant and
is entitled to heightened protection under the First Amendment
(Sullivan v. New York Times)...
"The Internet is similar to a television and radio broadcast
in the sense that the electronic missive is able to reach a large
and diverse audience almost instantaneously... However, the character
of a particular website depends on the format and program design...
A careful review of defendants' submission on Narco News's website
indicates that the Narco defendants' format is similar to a regularly
published public news magazine or newspaper except for the fact
that the periodical is published "on line" or electronically,
instead of being printed on paper. The fact that the Narco News
website can accept readers' comments, or letters to the editor,
via a separate e-mail address only strengthens the need for First
Amendment protections for the medium.
"Since principles of defamation law may be applied to the
Internet... this court determines that Narco News, its website,
and the writers who post information, are entitled to all the First
Amendment protections accorded a newspaper-magazine or journalist
in defamation suits... Furthermore, the nature of the articles
printed on the website and Mr. Giordano's statements at Columbia
University constitute matters of public concern because the information
disseminated relates to the drug trade and its affect on people
living in this hemisphere..."
-- New York Supreme Court Justice Paula Omansky
Pleading Requirements for Defamation
a. Statements Which Concern the Plaintiff
In New York, a corporation does not have a cause of action based
on an allegedly defamatory statement made solely against an individual
identified as a company owner or officer (Afftrex, Ltd. v General
Elec. Co., 161 AD2d 855, 856 [3d Dept 1990]). However, plaintiff
has stated sufficient facts to show that the alleged defamation
was not limited to corporate officers, namely the statements that
plaintiff bank was created with drug money and that officers of
the corporation were involved in money laundering. A reasonable
person could conclude that the public speeches, the radio broadcast,
and the web postings were addressing the integrity of the corporation
and its day-to-day business practices (Lazar v Merchants' Natl.
Props., Inc., supra, 45 Misc2d, at 237; see generally, Immuno AG
v J. Morr-Jankowski, 77 NY2d 235, 243 ).
b. Actionable Speech
An expression of an opinion is not actionable and "receives
the Federal constitutional protection accorded to the expression
of ideas, no matter how vituperative or unreasonable" (Steinhilber
v Alphonse, 68 NY2d 283, 289 ). Moreover, a pure opinion
is not actionable even if it is false or libelous (id. at 285).
The term "pure opinion" is defined as a statement of
belief which is accompanied by a recitation of facts upon which
it is based (Steinhilber v Alphonse, supra, 68 NY2d, at 289). However,
if the statement of opinion implies that it is based upon facts
which justify the opinion but which are unknown to those reading
or hearing it, the statement is a mixed opinion and is actionable
(ibid.). The determination of whether a given statement is a recitation
of facts or a pure opinion is not subject to a rigid set of criteria.
However, New York courts have applied four general factors in determining
whether speech is protected opinion or actionable misrepresentation
(1) an assessment of whether the specific language in issue has
a precise meaning which is readily understood or whether it is
indefinite and ambiguous;
(2) a determination of whether the statement is capable of being
objectively characterized as true or false;
(3) an examination of the full context of the communication in
which the statement appears; and
(4) a consideration of the broader social context or setting surrounding
the communication including the existence of any applicable customs
or conventions which might "signal to readers or listeners
that what is being read or heard is likely to be opinion, not fact"
(Steinhilber v Alphonse, supra, 68 NY2d, at 292, quoting Ollman
v Evans, 750 F2d 970, 983 [DC Cir 1984], cert denied 471 US 1127
; cf., 600 West 115th Street Corp. v Von Gutfeld, 80 NY2d
130, 139-134, rearg denied 81 NY2d 759 , cert denied 508
US 910 ).
The Narco defendants argue that the alleged defamation is protected
opinion because the public pronouncements, which were also broadcast
on the radio, as well as the articles posted on the website clearly
state that the Narco defendants' statements are based on eyewitness
accounts and reports' investigations. Plaintiffs argue that the
statements are actionable speech because the recitation of supporting
evidence is based on a gross distortion or misrepresentation of
the underlying facts.
A review of the pleadings and the submitted documents indicate
that defendant's message was intended to be an assertion of fact.
The alleged statements are precise and definite accusations against
plaintiff. The context of the speech, the broadcast and the electronic
transmission indicate to the listener or the reader that the Narco
defendants were reporting on alleged past events (cf., 600 West
115th Street Corp. v Von Gutfeld, supra, 80 NY2d, at 139-140 [statements
of false facts are actionable]).
c. Media Defendants
This court finds that Narco News is a media defendant and is entitled
to heightened protection under the First Amendment (New York Times
Co. v Sullivan, supra, 376 US, at 270-280).
The Internet is similar to a televison and radio broadcast in
the sense that the electronic missive is able to reach a large
and diverse audience almost instantaneously (Matherson v Marchello,
100 AD2d 233, 293 [2d Dept 1984]). However, the character of a
particular website depends on the format and program design (see,
Lunney v Prodigy Servs. Co., 94 NY2d 242, 249 , cert denied
529 US 1098 ). A careful review of defendants' submissions
on Narco News's website indicates that the Narco defendants' format
is similar to a regularly published public news magazine or a newspaper
except for the fact that the periodical is published "on line" or
electronically, instead of being printed on paper. The fact that
the Narco News website can accept readers' comments, or letters
to the editor, via a separate e-mail address only strengthens the
need for First Amendment protections for the medium Since principles
of defamation law may be applied to the Internet (Lunney v Prodigy
Servs. Co., supra, 94 NY2d, at 248), this court determines that
Narco News, its website, and the writers who post information,
are entitled to all the First Amendment protections accorded a
newspaper/magazine or journalist in defamation suits (Huggins v
More, 94 NY2d 296, 301 ). Furthermore, the nature of the
articles printed on the website and Mr. Giordano's statements at
Columbia University constitute matters of public concern because
the information disseminated relates to the drug trade and its
affect on people living in this hemisphere (id. at 302).
d. Public and Private Figures, Malice and Gross Irresponsibility
There are also different standards of proof, and, in turn, pleading
requirements, for complainants who are public figures and those
that are private individuals. Public figures may only recover for
defamation when they can both prove that the statement was made
with actual malice, that is with knowledge that it was false or
with reckless disregard for the truth (Prozeralik v Capital Cities
Communications, Inc., supra, 82 NY2d, at 475, citing New York Times
Co. v Sullivan, supra 376 US, at 285-286 [remaining citation omitted];
see, Esposito-Hilder v SFX Broadcasting, Inc., 171 Misc2d 286,
290 [Sup Ct, Albany County 1996], affd 236 AD2D 186 [3d Dept 1997]).
The category of public figure includes individuals who must be
deemed such for all purposes as well as those who might invite
publicity only with respect to a narrow area of interest (James
v Gannett Co., Inc., 40 NY2d 415, 422-423, rearg denied 40 NY2d
990 ). In certain instances, corporations, which are large
and possess great influence, are considered public figures or deemed
so because of actions taken by them which invite public comment
(Ithaca College v Yale Daily News Pub. Co. Inc., 105 Misc2d 793,
796 [Sup Ct, Tompkins County, 1980], affd 85 AD2d 817 [3d Dept
1981], citing Reliance Ins. Co. v Barron's, 442 F Supp 1341 [SD
NY 1977]). A bank is not a public figure solely by virtue of the
fact that it is in business or that it is incorporated or that
it is subject to routine or usual regulation of that business (Bank
of Oregon v Independent News, Inc., 65 Or App 29, 35 [Ct App, OR
1983], affd 296 OR 434, rehearing denied 298 OR 819 [Sup Ct, OR],
cert denied 474 US 826 ). A bank which thrusts itself into
the public sphere solely to defend itself against alleged defamatory
statements, does not become a public figure, waiving the protections
afforded private individuals in defamation actions (id., at 35,
citing Hutchinson v Proxmire, 443 US 111, 135  [remaining
The Narco defendants have not asserted facts which show that plaintiff
took steps to influence public opinion prior to the alleged defamation;
therefore, this court is unable to deem plaintiff a public figure
(cf., Howard v Buffalo Evening News Co., 89 AD2d 793 [4th Dept
However, despite the Narco defendants' omission, plaintiff is
still not entitled to enjoy the lower standard of proof accorded
private complainants because even private individuals suing media
defendants over statements involving matters of public concern,
must prove constitutional malice to recover presumed or punitive
damages (Huggins v More, supra, 94 NY2d, at 301, citing Gertz v
Robert Welch, Inc., 418 US 323, 347 ).
Plaintiff may not rely on allegations of falsity alone to raise
an inference of malice but must plead facts which, if proven true,
would show that the Narco defendants intended to injure plaintiff
(Prozeralik v Capital Cities Communications, Inc., supra, 82 NY2d,
at 302, citing Bose Corp. v Consumers Union of U.S., 466 US 485,
511, n 30, rehearing denied 467 US 1267 ).
Plaintiff does not specifically explain how the Narco defendants'
statements actually disrupted plaintiff's business (Jurlique Inc.
v Austral Biolab Pty. Ltd., 187 AD2d 637, 638 [2d Dept 1992]).
Nothing in the supporting papers indicates that the Narco defendants
had any monetary interest in the banking industry or that they
wished to harm plaintiff's business dealings.
In addition, plaintiff has also failed to state sufficient facts
which indicate that the Narco defendants "'acted in a grossly
irresponsible manner without due consideration for the standards
of information gathering and dissemination ordinarily followed
by responsible parties'" (Huggins v More, supra, 94 NY2d,
at 301 quoting Chapadeau v Utica Observer-Dispatch, 38 NY2d 196,
199 ). Plaintiff did not plead facts which, if proven true,
would show that the Narco defendants did not utilize those methods
of verification which are reasonably calculated to produce accurate
copy (Lee v City of Rochester, 254 AD2d 790, 792 [4th Dept 1998].
Here, plaintiff does not indicate that the Narco defendants used
sources which they knew, or should have known, were unreliable,
or that the Narco defendants were aware of other reliable sources
to verify the information alleged in Por Esto! (Robare v Plattsburgh
Co. Div of Ottaway Newspapers, Inc., 257 AD2d 892, 893 [3d Dept
199], citing Chapadeau v Utica Observer-Dispatch, supra, 38 NY2d,
at 199). The Narco defendants were entitled to rely on the accuracy
of articles written by reporters from Por Esto! (Karaduman v Newsday,
Inc., 51 NY2d 531, 550 , rearg denied 52 NY2d 899 )
and are under no legal obligation to interview, or re-interview,
every possible witness to an incident (Lee v City of Rochester,
supra, 252 AD2d, at 793, citing Mitchell v Herald Co., 137 AD2d
213, 217 [4th Dept], appeal dismissed 72 NY2d 952 ). Moreover,
the question of whether the Narco defendants are guilty of unbalanced
reporting is a matter of editorial judgment and is not actionable
(Gotbetter v Dow Jones & Co., Inc., 259 AD2d 335 [1st Dept
1999]). Plaintiff has not stated any fact which, if proven true,
would show that the Narco defendants were aware of circumstances
which would have lead them to question the veracity of the information
provided (Robare v Plattsburgh Co. Div of Ottaway Newspapers, Inc.,
supra, 257 AD2d, at 894).
Therefore, those branches of the Narco defendants' motions, in
motion sequence nos. 002 and 003, to dismiss the first and second
causes of action for libel and slander on the ground of insufficiency,
are granted. Remaining Claims Plaintiff has also failed to state
sufficient facts to indicate that the Narco defendants tortiously
interfered with future contract relationships (WFB Telecommunications
v NYNEX, 188 AD2d 257, 258 [1st Dept 1992], lv denied 81 NY2d 709
; Jurlique Inc. v Austral Biolab Pty. Ltd., supra, 187 AD2d,
at 638). In particular, plaintiff has failed to allege any specific
relationships with which the Narco defendants interfered (Business
Networks of New York v Complete Network Solutions Inc., 265 AD2d
194, 195 [1st Dept 1999]). Therefore, those branches of motions
sequence nos. 002 and 003 which seek to dismiss the third cause
of action for interference with prospective economic advantage,
This court need not reach any of the litigants' remaining arguments
concerning the sufficiency of the pleadings or the objections to
this action based on the ground of forum non conveniens. Since
this court has dismissed all the causes of action, there is no
need for further discovery or for a hearing on jurisdictional matters.
Accordingly, it is
ORDERED that the motion of Electronic Frontier Foundation in motion
sequence no. 004, for leave to appear as amicus curiae is granted
and the individual's application, motion sequence no. 005, is denied
for the reasons stated herein; and it is further
ORDERED that the motion of defendant Menéndez-Rodriguez,
in motion sequence no. 001 to dismiss, with prejudice, all claims
against him for lack of personal jurisdiction is granted; and these
portions of the complaint are severed and dismissed; and it is
ORDERED that the motions of defendant Narco, motion sequence no.002,
and defendant Al Giordano, motion sequence no. 003, to dismiss,
with prejudice, the complaint against them on the ground of insufficiency,
is granted; and the remaining portions of the complaint are dismissed;
and it is further
ORDERED that the clerk is directed to enter judgment accordingly.
DATED: December __, 2001
in Banco Nacional de Mexico v. Narco News, Giordano, et al.(July
The inexpensive, ubiquitous publishing power of the Internet has
transformed the traditional conception of the “press," as
millions of individuals and organizations have become online publishers.
The new independent journalists of the Internet, as personified
by Al Giordano, play a crucial role in preserving the democratic
aspirations of First Amendment protection. The role of such journalists
is especially salient as mainstream media is increasingly in the
hands of fewer and fewer large corporations.
The case at bar presents two issues that will play a key role
in determining the future viability of online, independent journalism:
(1) the ability of foreign plaintiffs to forum shop abusively,
subjecting online, independent journalists to foreign laws and
distant fora that will chill the Internet's free press; and (2)
the freedom of online journalists to republish articles on the
Internet from publications in the offline realm without unreasonably
being subjected to liability.
In order to best preserve the objectives of the First Amendment
through encouraging the nascent field of online, independent journalism,
the Court should distinguish the libel claims specific to the Narco
News Bulletin website (http://www.narconews.com) from those claims
concerning statements made offline. In analyzing the claims specific
to Narconews.com, the Court should hold that Mexican substantive
law applies and subsequently dismiss the case on forum non conveniens
grounds. To grant jurisdiction in this case would place an undue
burden on online, independent publishers, and would consequently
be in violation of the First Amendment. If the Court conversely
refuses to dismiss the case and finds that New York substantive
law applies, the Court should apply a distinct, higher legal standard
for establishing libel in regards to statements posted on Narconews.com
that are republished from articles printed in offline publications.
If the Court applies the same legal analysis to the Internet libel
claims that it applies to the offline libel claims, the Court will
be ignoring crucial factual distinctions between the two sets of
claims and will be placing excessive burdens on online journalists
that will unduly chill the independent, Internet press. The application
of New York substantive law to claims alleging libel for statements
made on a foreign website where the great majority of the alleged
harm occurred in a foreign jurisdiction will encourage explicit
forum shopping by plaintiffs. Independent, online publishers will
be less willing to partake in spirited investigative journalism
if they become subject to the substantive laws of any forum where
jurisdiction might be found.
The exercise of jurisdiction via the Internet should not serve
to expose a party to the most disadvantageous state law claims
existent, which the party has no notice of, or which are entirely
foreign to the laws of its home forum. The excessive burden placed
upon independent, Internet-based journalists in defending themselves
in distant fora chills online journalistic activity, implicating
online First Amendment rights that are of central concern to the
Electronic Frontier Foundation
the legal standard applied for republished works requires that
a republisher “had or should have had, substantial reasons
to question the accuracy of the articles" to be found liable. Id.
at 539 (1980). The higher liability standard for the republishing
of allegedly libel material is necessary to prevent the inhibition
of online journalistic activity, encouraging growth in the nascent
field of Internet journalism.
Independent, Internet journalism embodies the democratic vision
of the “freedom of the press" clause of the First Amendment.
Journalists like Al Giordano are able to post their investigative
efforts and the efforts of others via the Internet to the entire
world, with incredibly low production and distribution costs. Given
that mainstream media is increasingly in the hands of fewer and
fewer corporations, the Internet is a crucial outlet for independent
media projects such as Narconews.com.
The Supreme Court notably remarked the vital importance of an
independent press in a time of corporate and government conglomeration
in Branzburg v. Hayes, 92 S.Ct. 2646 (1972): “As private
and public aggregations of power burgeon in size and the pressures
for conformity necessarily mount, there is obviously a continuing
need for an independent press to disseminate a robust variety of
information and opinion through reportage, investigation, and criticism,
if we are to preserve our constitutional tradition of maximizing
freedom of choice by encouraging diversity of expression." Id.
at 2672. See also Times-Picayune Pub. Co. v. U. S.,73
S.Ct. 872 (1953) (finding that an “independent press stimulates
free discussion and focuses public opinion on issues and officials
as a potent check on arbitrary action or abuse.") In evaluating
the various claims against Narconews.com, the Court should consider
the societal importance of independent online journalists, and
the ramifications that this decision will have upon their ability
to freely disseminate their investigative news stories.
The state with the most “significant" relationship to the
Narconews.com libel claims is clearly Mexico, the principal place
of business of Banamex and where Banamex's reputation is most susceptible
to damage. Banamex does not even have a branch office in New York;
it only has an “agency" in New York City that is unable to
open accounts in the United States. Furthermore, Mexico has the
strongest interest in regulating allegedly tortious behavior that
occurs within its borders. New York's interest in the Internet
libel claims, conversely, is predominantly founded upon the Narco
News Bulletin website's accessibility via the Internet within its
The Internet's universal accessibility, however, does not categorically
imply that alleged harms committed on the Internet have a universal
impact or that any jurisdiction on earth should be forced to adjudicate
Internet-related disputes and to apply its own substantive law.
Though the Narconews.com website is accessible in New York and
even written in English, the tort itself occurred in Mexico and
the harm was felt within Mexico's jurisdiction. The place of “wrong" is
Mr. Giordano typed the allegedly libelous statements within Mexico-the
fact that the ISP he utilized is headquartered in New York state,
and that the ISPs servers are located in Maryland, does not change
the fact that the comments emanated from Mexico. It would be no
different if Mr. Giordano orally made the statements from Mexico
and his words were videotaped and aired worldwide by an American
broadcast station. The tort itself still occurred in Mexico.
Furthermore, the harm that Banamex felt predominantly occurred
in Mexico. Even if most of the readers of the Narco News Bulletin
website were not Mexican, the impact felt by Banamex (be it social,
legal, political, or economic) resulting from Mr. Giordano's statements
still took place in Mexico, Banamex's principal place of business.
Thus, if the Narconews.com's stories cause an individual in upstate
New York to not invest in Banamex, or potentially subject Banamex
to suit under U.S. drug trafficking laws in New York, the harm
itself is still felt at Banamex's headquarters in Mexico.
The mere fact that the Internet is accessible in New York should
not allow Banamex to litigate its dispute under a more favorable
law than the one which would naturally govern in Mexico. As described
above, the Internet in and of itself does not expand the “locus
of the tort" beyond its natural confines, as the harm that Banamex
allegedly felt as a result of Narconews.com's postings would have
predominantly occurred in Mexico.
Adopting a rule like the one Banamex proposes would inhibit the
growth of online, independent investigative journalism by subjecting
individual publishers to the laws of fora anywhere in the world.
Such a rule would facilitate abusive forum shopping by plaintiffs,
allowing them to search for states where jurisdiction might be
found and where the law is most favorable to their cause. If plaintiffs
know that courts will apply the substantive law of the state most
affected by the tort, they will be less likely to sue independent
online journalists in foreign fora. This will in turn allow such
journalists to engage in spirited journalism in their home state
without the chilling fear of being subject to the foreign laws
of innumerable jurisdictions.
There is also, however, a Constitutional basis to dismiss the
case on forum non conveniens grounds. A finding of jurisdiction
would be unconstitutional under the First Amendment given the harm
that will ensue to online publishers such as Mr. Giordano. As the
Internet subjects online journalists to an increasing number of
foreign jurisdictions, the doctrine of forum non conveniens has
taken on an even more important role in protecting online freedom
of the press. Through operating as a “safeguard" against
suit in distant jurisdictions, forum non conveniens minimizes the
burden that online journalists must endure when the legality of
their news stories is challenged in a court of law.
The doctrine of forum non conveniens as applied to libel cases
involving online journalism, and mass media in general, thus offers
a distinct way to protect and bolster the First Amendment rights
of journalists and publishers. Judge Friendly of the 2nd Circuit
described the Constitutional dimensions of the forum non conveniens
doctrine in a libel suit involving the New York Post:
If, however, mass media should be protected not merely by appropriate substantive defenses to defamation actions but also by procedural rules that will enable
them to have burdensome suits dismissed without the necessity of
a trial and an appeal, such considerations go not to 'jurisdiction'
over the defendant, which must exist quite as much when he circulates
a libel within a state as when he sends a leaking can of poison
there, but to the consistency with the First Amendment's objectives
of the state's exercising such jurisdiction in a particular case.Putting
the matter in a slightly different way, the First Amendment could
be regarded as giving forum non conveniens special dimensions and
constitutional stature in actions for defamation against publishers
In the case at bar, where the plaintiff has suffered no distinguishable
harm in New York state as a result of the libel claims concerning
the Narco News Bulletin website, failure to dismiss the case on
forum non conveniens grounds would place unconstitutional burdens
on Mr. Giordano. This court must not be “unmindful of the
chilling effect on First Amendment rights when a defendant is subjected
to a trial involving weeks or months and tremendous expense in
a forum several hundred miles from his home and occupation." Dworkin,
647 F.Supp. at 1283 (internal citations omitted). To comport with
the First Amendment's objective of promoting freedom of the press-of
heightened import in the context of independent online journalism-the
case at bar should be dismissed.
there was no evidence in the record that a republisher had cause
to doubt the veracity of the statements in question or the integrity
of the reporters who gathered the underlying facts). The court
found that a republisher cannot be held grossly irresponsible in
the absence of facts that “would arouse the suspicions of
a careful publisher or that would give cause for further inquiry." Id. at 549. The Karaduman court went on to say that a republisher
has no realistic choice but to assume that carefully designed internal
procedures for ensuring accuracy have been effective. Those internal
procedures demand “no more than that a publisher utilize
methods of verification that are reasonably calculated to produce
“Absent 'obvious reasons' to doubt the truth of an article,
a [publisher] does not have the 'intolerable burden of rechecking
every reporter's assertions and retracing every source before' publication." Id. at 1032; see also Gaeta v. New York News Inc., et al.,
465 N.E.2d 802, 806-07, 477 N.Y.S.2d 82 (1984) (finding no gross
irresponsibility where source had previously furnished accurate
information, facts had inherent plausibility and publisher had
no reason to suspect any animus toward the plaintiff).
The higher liability standard has also been applied in the Internet
context. In Tzougrakis v. Cyveillance, Inc., 2001 WL 546789
(S.D.N.Y. 2001), the Southern District of New York court granted
summary judgement to an Internet newswire that republished an allegedly
libelous story, even where the newswire had editorial control over
the material it released. The court found that the plaintiff could
not establish even the lower standard applied to first time publishers
that false and defamatory statements of and concerning the plaintiff
were made with gross negligence. See Karaduman, 51
N.Y.2d at 539 (1980).
In the case at bar, Banamex needs to establish the higher standard
as promulgated in Karaduman in regards to the Narco News
Bulletin website statements that were republished from the articles
printed in Por Esto!. The plaintiff must prove that Mr.
Giordano “had or should have had, substantial reasons to
question the accuracy of the articles." Id. at 539 (1980).
This inquiry rests with the trier of fact. The republication of
allegedly libelous statements on the Internet is distinct from
the initial publication of statements that are allegedly libelous.
The speed and flexibility of the Internet allows online journalists
and publishers to quickly reproduce the works of other journalists
with incredibly low transaction costs. The higher liability standard
for the republishing of allegedly libelous material is necessary
to prevent the chilling of online journalistic activity, encouraging
growth in the emerging field of Internet journalism and preserving
the First Amendment objectives of promoting the free press.
Although it is in the very nature of the internet that the allegedly
infringing marks contained in these web sites can be viewed anywhere,
this does not mean that the infringement occurred everywhere....
A rationale for [this] ... may be that literal application of the
'where viewed' rule would result in jurisdiction anywhere in the
world in every infringement case involving a web site.
See Stephen H. Weiner, Forum Non Conveniens, 64 Fordham
L. Rev. 845, 845 (1995) (“Any hardship to individuals from
Internet-related litigation or criminal prosecutions should be
minimized through application of the doctrine of forum non conveniens." Id. at 845; “The forum non coveniens doctrine...provides a safeguard
against hardship to defendants from being prosecuted in distant
jurisdictions based on messages sent via online information services
or electronic bulletin boards." Id. at 850.)
Harvard Law Professor Charles Nesson recently noted the importance
of independent journalism in the Banamex case and the burdensome
ramifications that finding jurisdiction will have upon investigative
journalism: “if the big fish can then pursue the journalist
around the world and threaten the website wherever it emanates
from, that's potentially harmful to spirited investigative journalism.
And that, I think, has significance." Mark K. Anderson, “A
Case of Free Speech Boundaries", May 8, 2001, WiredNews at
http://www.wired.com/ (last visited June 18, 2001).
Theprescription.com also argued that specific jurisdiction could
not be premised on the "effects test" established in Calder
v. Jones, 465 U.S. 783 (1998), that has been used as an alternative
jurisdictional analysis in Internet defamation cases, because the
Web site's intended audience and thus the focus of any reputational
harm was not in Pennsylvania.
Granting theprescription.com's motion and dismissing the action,
Waldman accepted theprescription.com's arguments that Pennsylvania
was not the focus of the Web site or its audience. Thus, the court
ruled that "the recipient audience is not linked by geography
but by a common interest in off-shore sports gambling."
Further, the court continued, "[t]he brunt of any harm suffered
by the plaintiff corporation would be in Jamaica." Moreover,
the court explained, "[e]ven assuming that the brunt of any
harm suffered by the individual plaintiff would be in Pennsylvania,
there is no showing that the defendant expressly aimed the tortious
conduct at the forum."
This fact was significant, reasoned the court, because "[i]t
is not sufficient that the brunt of the harm falls within plaintiff's
home forum, even when this was reasonably foreseeable [as] '[t]here
is an important distinction between intentional activity which
foreseeably causes injury in the forum, and intentional acts specifically
targeted at the forum'" (quoting Narco Avionics, Inc. v.
Sportsman's Market Inc., 792 F. Supp. 398, 408 (E.D. Pa. 1992).
The decision is potentially significant for Web site operators and other
Internet businesses because it underscores that jurisdiction in a defamation
action may not be based simply on plaintiff's residence, even when the
allegedly defamatory statements refer to plaintiff's conduct within the
Consistent with the "purposeful availment" ordinarily required
for specific jurisdiction, the court focused on the conduct of the Web
site operator itself, i.e., whether it intended to reach a Pennsylvania
audience or was otherwise aimed at the forum, as opposed to whether the
content of the article related to the forum. Because the vast majority
of Web sites are aimed at a national or, as in this case, an international
audience, the court's approach provides an important measure of protection
for Web site operators that are sued in remote locations, and particularly
in the home-state courts of the plaintiff.
It has been reported today that the Australian High Court has
held a Claimant in Australia has the right to sue a US based Website
in the Australian courts, for publishing defamatory comments on
This is the first high level court case which has dealt with the
questions raised when a Claimant attempts to pursue a defamation
action where the defamatory statement has been published on the
Internet but on a server located in a different jurisdiction.
Law commentators believe that this case could set a precedent
for all Internet defamation cases around the world.
This is because the Australian court held that an Internet page
is deemed to be published not only in the country of origin but
also in the country where it is viewed.
It was claimed by the Website's lawyers that this will mean Websites
will have to know the law from “Afghanistan to Zimbabwe" prior
to publishing any comment on the Internet.
The court dismissed this suggestion stating that taking steps
to identify the person “about whom material is to be published
will readily identify the defamation law to which that person may
This case may prove to be a turning point in the legal development
of the Internet. Should this case be followed in the UK it will
simplify the process by which a Claimant can pursue a claim in
relation to Internet defamation.
The principle may also be extended to assist in dealing with other
civil wrongs committed via the Internet.