Stillborn Thoughts

News, Issues, and Analysis on the intersection of Law and the Internet

Saturday, January 14, 2006

Case: Defamation on internet NOT vulnerable to different state law

Quick case news:

Bo knows baseball, Bo knows football. Bo does not, however, know law so well. This week in the case of "Bo" Jackson v. California Newspapers Partnership, Bo's complaint over an online publications allegation of anabolic steroid use fell short of the requirements to bring legal recourse against the newspaper. As Frost, Brown, and Todd, LLC summarize:
California-based media defendants publish the Inland Valley Daily Bulletin newspaper in California and publish articles on the website, www.dailybulletin.com. Jackson sued the defendants based on an article that alleged he lost his hip because of anabolic steroid use. Defendants moved to dismiss the lawsuit based on a lack of personal jurisdiction. Jackson claimed that because the article was published on the internet that the defendants had established sufficient minimum contacts with Illinois such that they could reasonably expect to be sued in Illinois. The court disagreed.
The case comes in a long line of cases, stemming from the dual tests that the Courts use to determine this type of cyber jurisdiction: the Zippo test and the effects test. Essentially, the effects test looks at what the intended effects of an action are, and the Zippo test focuses on a sliding scale of how "interactive" the website is, as well the commercial nature of the site. A good summary of the two tests can be found here, in an article written by Law Professor Julia Alpert Gladestone.

In Bo's case, as the Stanford Center for Internet and Society points out,
the Court noted that the focal point remained the question of where defendants “direct” their torts. Thus, the question was distilled down to “whether defendants directed their website at Illinois residents.”
At the state level, this sort of analysis works just fine... sort of. Consider what would happen if such a standard was applied to international jurisdiction. There would be no recourse to stop one country from infringing on another countries laws... namely, freedom of speech laws. The big example here is the Yahoo! case of auctioning Nazi memorabilia through its english cite, and getting sued by the French Law Students Union because such an auction is not allowed under French law. Closer to home, think of the Russian MP3 sites I've mentioned in the past, that, while they may be legal in their own country, violate U.S. law by distributing copyrighted music without adhering to the pricing restrictions of the U.S.

...and this, at least for me, creates imperialist tendancies. Because while I'm an adament supporter of freedom of speech... may that mean Lance Armstrong bad-mouthing his Italian opponent in a France newspaper or white supremacists vying for a lock of Hitler's hair on Yahoo! auctions... I feel like there are legitimate reasons for a nation to protect and uphold its laws.

Back to the state level, consider this scenario: In some states, lets say Utah and Kentucky, the taxes on cigarettes are much cheaper than in, say, California. And since the postal service pretty much ignores packages under a set size and weight, its possible to ship cigarette packs across state lines without paying the state taxes on those cigarettes. So, as a resident in California, I can buy cigarettes from Kentucky at 2 dollars less a pack.

Is the website at fault? (the website I'm thinking about, by the way, is www.yessmoke.ch, a swiss website that does just this... before yessmoke, individual state sites served this purpose) Well... that depends... on one hand, the website might include a disclaimer that it is the purchasers responsibility to conform to local laws... and on the other, it might appear OBVIOUS that the Utah or Nevada website earns most of its commercial business from the illegal sale of cigarettes to areas with high cigarette taxes, like California.

That might be an ambiguity that is inherent with a sliding scale like Zippo, but its an issue that will need to be resolved if the Courts are to avoid a whole mess of frivolous lawsuits. As Frost, Brown, and Todd conclude,

In sum, Jackson v. California Newspapers Partnership shows that the Zippo sliding scale has become a cornerstone of personal jurisdiction analysis involving internet activity; and “although technological advances may alter the analysis of personal jurisdiction, those advances may not eviscerate the constitutional limits on a state’s power to exercise jurisdiction over nonresident defendants.”

...we'll see about that...

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