Libel

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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 lawsuit.

In a Pennsylvania libel case, my interpretation is that the plaintiff has the burden of proving the following:

  1. The printed statements are defamatory.
  2. The defendant published them..
  3. They apply to the plaintiff.
  4. The reader understands the defamatory meaning.
  5. The reader understands that it applies to the plaintiff.
  6. The plaintiff was harmed by the publication
  7. 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 for libel:

  1. The [substantial] truth of the defamatory communication.
  2. The privileged character of the occasion on which it was published (such as Pennsylvania's "fair report" privilege).
  3. 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.

In Philadelphia 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.

See: First 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 recoverable.

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 they sue.

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.

http://usinfo.state.gov/products/pubs/press/homepage.htm

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 Sullied

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 maximum protection.

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 published.

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 matter stated.

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 to:

(1) Those persons who by

(a) occupying positions of "persuasive power and influence" (33)

(b) their "pervasive involvement in the affairs of society," (34) or

(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 reporting it.

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 damages.

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."


SEE http://www.narconews.com/warroom.html

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

http://www.eff.org/Cases/BNM_v_Narco_News/20011205_decision.html

QUOTE:

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 [1991]).

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 [1986]). 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 of facts:

(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 [1985]; cf., 600 West 115th Street Corp. v Von Gutfeld, 80 NY2d 130, 139-134, rearg denied 81 NY2d 759 [1992], cert denied 508 US 910 [1993]).

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 [1999], cert denied 529 US 1098 [2000]). 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 [1999]). 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 [1997]). 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 [1985]). 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 [1979] [remaining citation omitted]).

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 1982]).

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 [1974]).

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 [1984]).

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 [1975]). 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 [1980], rearg denied 52 NY2d 899 [1981]) 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 [1988]). 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 [1993]; 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, are granted.

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 further

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

UNQUOTE


in Banco Nacional de Mexico v. Narco News, Giordano, et al.(July 16, 2001)

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 borders.

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 Mexico.

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 and broadcasters.

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 accurate copy."

“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).


Jurisdiction

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 forum.

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 the Website.

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 resort."

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.


 

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