Published by LawTechie - February 14, 2012 - LawTechie

Internet DefamationA new judgment rendered by the Court of Appeals illustrates how a lack of personal jurisdiction can be used as a defense to Internet defamation.

The defendant, American Working Collie Association (AWCA), an Ohio non-profit corporation and its president, Jean Levitt, a Vermont resident constructed a series of articles examining the conditions and treatment the Plaintiff, SPCA of Upstate New York providefor collies. These articles were published by the Defendants on their website www.awca.net, wherein the president, Jean Levitt frequently provides a myriad of information, anecdotes, and photographs related to collies. However, the judgment emphasizes the issue of lack personal jurisdiction instead of whether the alleged defamatory statements injured the plaintiff. SPCA of Upstate New York, Inc. v. American Working Collie Association, — N.Y.S.3d — (N.Y. Ct. App. Feb. 10, 2012).

Chief Judge Lippman for the majority, went through an elaborate analysis of whether personal jurisdiction over a non-domiciliary could be obtained. Under CPLR 302 (a), long-arm jurisdiction for a defamation cause of action is the exception for “tortious act” jurisdiction because each State policy differs in the governance of freedom of expression and therefore, courts avoids setting disproportionate restrictions. Nevertheless, in order to proceed on with this claim non-domiciliaries must have transacted in business within the state to satisfy 302(a). The court cited McGowan v Smith, 52 NY2d 268, 271[1981] to interpret “some articulable nexus between the business transacted and the cause of action sued upon” or a substantial relationship. The Defendant, AWCA only visited SPCA several times in order to donate supplies and tour the facilities for several hours. Additionally, the phone calls between Jean Levitt and executive director of the SPCA, Cathy Cloutier were infrequent and limited. Therefore, AWCA’s activities in New York were limited and did not form substantial relationship between the parties constituting transactions in business.

Piggot J dissenting contends the aforesaid reasoning by the majority is flawed because it is sufficient to invoke jurisdiction when Defendant’s acts are “purposeful” thus creating a substantial relationship. The mission statement of the AWCA establishes the promotion of the “well-being of collies” and therefore, the nature of this statement insinuates New York is part of this endeavor to promote. Additionally, the AWCA volunteered to donate collars and leashes, donated money and purposely communicated with the SPCA – this would constitute a substantial relationship. Piggot J criticizes the majority’s concerns for “free speech” as misplaced because there is little danger of a chilling effect to occur whilst analyzing whether business transactions in New York were purposeful or whether there was a mere “libelous utterance.” Therefore, courts should be more open to practicing long-arm jurisdiction.

Internet defamation comes with a labyrinth of law and it almost seems impossible to maneuver through to ascertain a successful cause of action. Moreover, the Court’s apprehensiveness whilst extending personal jurisdiction to a defamation cause of action is troublesome. The “but for” requirement seeking to establish substantial relationship in business is no longer feasible because business practices are no longer confined to a certain forum because of the Internet. State policy does not govern freedom of expression on the Internet; therefore long-arm jurisdiction would be appropriate.

Similarly to Internet defamation the issue of cyber squatters and gripping sites still seem to be a hot-button topic in court and Congress. The Competitors Section 43 (d) of the Lanham Act provides an Anticybersquatting Consumer Protection Act (ACPA). This provision grants cause of action to trademark owners against individuals with bad faith and the intention to profit from by purchasing domain names. Moreover, individuals are allowed to register domain names to form gripping sites that criticize companies and businesses as long as there is no intent to profit or deceive the public. This issue seems to tie into Internet defamation because it seems that with this legislation Congress is essentially illustrating that making profits is inappropriate but registering a websites with domain names like blanksucks.com is okay.

Note from Tim: The last paragraph speaks to Michelle’s residency in the UK. In the US we have this thing called freedom of speech which, whilst making it okay for Congress to regulate commercial activity via the Lanham Act (e.g., profiting from deceptive domain names), it would be unconstitutional for Congress to make it inappropriate to register domains for “griping” activities 🙂

Guest author Michelle Addison is a law clerk on Tim’s internet law team at Handal & Morofsky, LLC. She is a graduate of the Queen Mary University of London School of Law (LLB Law, Honors), and is completing her US-based LLM at the Benjamin N. Cardozo School of Law.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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