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Disclosures:
THIS
PAGE IS DEDICATED TO OUR DISSEMINATION OF LEGAL NOTICES....FOR
EXAMPLE SOME PEOPLE NOT EVEN ASSOCIATED WITH OUR GROUP WHO WE
ASSUME ARE AFRAID TO WRITE TO US OR JUST PLAIN KNOW THEY ARE
WRONG ARE ATTEMPTING TO HAVE THIS SITE REMOVED!
THE
FOLLOWING IS A DISCUSSION OF DEFAMATION, FREEDOM OF SPEECH, the
INTERNET, THE LAWS OF THE UNITED STATES AND OTHER SORVEIGN
NATIONS AS THE UNITED STATES OF AMERICA DOES NOT RULE THE
INTERNET! ENJOY THIS READING AND PLEASE WRITE TO US IF YOU
HAVE ANYTHING TO ADD....WE WILL BE POSTING to our RETRACTIONS
PAGE IF WE ARE EVER TO HAVE TO MAKE ANY RETRACTIONS TO OUR
STORIES...
FAILING
TO REMOVE AFTER NOTICE – US AND ENGLISH APPROACHES
In the 1997 US Court of Appeal case of Zeran v. America On-Line,
Inc., the plaintiff sued the defendant internet service provider
(“ISP”) for unreasonable delay in removing defamatory
messages posted by an unidentified third party, refusing to post
retractions, and failing to screen for similar postings
thereafter. The Court held that the Communications Decency Act
barred such claims by immunizing commercial interactive computer
service providers from liability for defamatory information
posted by third parties. In reaching its decision the Court
noted the following [at p. 333]:
If computer service providers were subject to distributor
liability, they would face potential liability each time they
receive notice of a potentially defamatory statement - from any
party, concerning any message. Each notification would require a
careful yet rapid investigation of the circumstances surrounding
the posted information, a legal judgment concerning the
information’s defamatory character, and an on-the-spot
editorial decision whether to risk liability by allowing the
continued publication of that information. Although this might
be feasible for the traditional print publisher, the sheer
number of postings on interactive computer services would create
an impossible burden in the internet context.
In contrast to the American approach, an ISP in the 1999 English
High Court case of Godfrey v. Demon Internet Ltd. was found
liable in defamation after failing to remove defamatory remarks
in a posting to a Newsgroup forum following a request to do so
by the plaintiff who was alleged to have been the author of the
posting. The comments in the posting were obscene and defamatory
of the plaintiff and he denied being the author. He therefore
requested their removal but the defendant company failed to do
so. The High Court concluded that, since the defendant company
knew about the defamatory content of the posting, they could not
avail themselves of the protection of s. 1(1) of the English
Defamation Act 1996, c. 31 which states:
1(1) In defamation proceedings a person has a defense if he
shows that -
(a) he was not the author, editor or publisher of the statement
complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he
did caused or contributed to the publication of a defamatory
statement.
While the Court concluded that the defendant company was not a
“publisher” as defined in the Act it concluded that the
company did nothing once it was notified of the allegedly
defamatory nature of the posting it could not rely on the
defense.
--------------------------------------
THE
DRUDGE CASE – AN ILLUSTRATION
Late at night on the evening of Sunday, August 10, 1997, Matt
Drudge wrote and transmitted his “Drudge Report” and in it
he alleged that a new White House recruit, Sidney Blumenthal,
had a history of spousal abuse. Drudge transmitted the report
from Los Angeles, California, by e-mail to his direct
subscribers and posted both his headline and the full text on
his Worldwide Website. He then transmitted the text but not the
headline to America OnLine, which, in turn, made it available to
AOL subscribers.
The next day, after receiving a letter from Mr. Blumenthal’s
lawyer, Drudge retracted the story through a special edition of
his report posted on his Website and e-mailed to his
subscribers. Mr. Drudge e-mailed the retraction to AOL, which
immediately posted it on its service. Drudge later publicly
apologized to the Blumenthals but, nonetheless, the Blumenthals
sued both Drudge and AOL. Regarding AOL’s liability, the judge
said:
While Congress could have made a different policy choice, it
opted not to hold interactive computer services liable for their
failure to edit, withhold or restrict access to offensive
material disseminated through their medium s. 230(c) [of the
Communications Decency Act of 1996] provides:
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided
by another information content provider.
. . .
AOL was nothing more than a provider of an interactive computer
service on which the Drudge Report was carried, and Congress has
said quite clearly that such a provider shall not be treated as
a “publisher or speaker” and therefore may not be held
liable in tort.
. . .
Why should AOL be permitted to tout someone as a gossip
columnist or rumor monger who will make such rumors and gossip
“instantly accessible” to AOL subscribers, and then claim
immunity when that person, as might be anticipated, defames
another?
If it were writing on a clean slate, this Court would agree with
plaintiffs. AOL has certain editorial rights with respect to the
content provided by Drudge and disseminated by AOL, including
the right to require changes in content and to remove it; and it
has affirmatively promoted Drudge as a new source of unverified
instant gossip on AOL. Yet it takes no responsibility for any
damage he may cause. AL is not a passive conduit like the
telephone company, a common carrier with no control and
therefore no responsibility for what is said over the telephone
wires. Because it has the right to exercise editorial control
over those with whom it contracts and whose words it
disseminates, it would seem only fair to hold AOL to the
liability standards applied to a publisher or, at least, like a
book store owner or library, to the liability standards applied
to a distributor. But Congress has made a different policy
choice by providing immunity even where the interactive service
provider has an active, even aggressive role in making available
content prepared by others. In some sort of tacit quid pro quo
arrangement with the service provider community, Congress has
conferred immunity from tort liability as an incentive to
Internet service providers to self-police the Internet for
obscenity and other offensive material, even where the
self-policing is unsuccessful or not even attempted.
. . .
While it appears to this Court that AOL in this case has taken
advantage of all the benefits conferred by Congress in the
Communications Decency Act, and then some, without accepting any
of the burdens that Congress intended, the statutory language is
clear: AOL is immune from suit, and the Court therefore must
grant its motion for summary judgment.
A second part of the Blumenthal v. Drudge case was equally
important and revealing. Matt Drudge (who, as author, could not
claim immunity under the Act) applied to the US District Court
for the District of Columbia for a motion to dismiss or transfer
the case for want of personal jurisdiction over him (a resident
of California). The decision turns on the “long arm” statute
of the District of Columbia, but many states and provinces have
similar legislation. The court stated:
The legal questions surrounding the exercise of personal
jurisdiction in “cyberspace” are relatively new, and
different courts have reached different conclusions as to how
far their jurisdiction extends in cases involving the Internet.
Generally, the debate over jurisdiction in cyberspace has
revolved around two issues: passive web sites versus interactive
web sites, and whether a defendant’s Internet-related contacts
with the forum combined with other non-Internet related
contracts are sufficient to establish a persistent course of
conduct. As one court has explained:
At one end of the spectrum are situations where a defendant
clearly does business over the Internet. If the defendant enters
into contracts with residents of a foreign jurisdiction that
involve the knowing and repeated transmission of computer files
over the Internet, personal jurisdiction is proper. At the
opposite end are situations where a defendant has simply posted
information on an Internet Web site which is accessible to users
in foreign jurisdictions. A passive Web site that does little
more than make information available to those who are interested
in it, is not grounds for the exercise [of] personal
jurisdiction. The middle ground is occupied by interactive Web
sites where a user can exchange information with the host
computer. In these cases , the exercise of jurisdiction is
determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on
the Web site.
Zippo Mfg. Co. v. Zippo Dot Com. Inc., 1997.
. . .
Despite the attempts of Drudge and his counsel to label the
Drudge Report as a “passive” web site, the Court finds this
characterization inapt. The Drudge Report’s web site allows
browsers, including District of Columbia residents, to directly
e-mail defendant Drudge, thus allowing an exchange of
information between the browser’s computer and Drudge’s host
computer. . . . The constant exchange of information and direct
communication that District of Columbia Internet users are able
to have with Drudge’s host computer via his web site is the
epitome of web site interactivity.
. . .
Even though Drudge may not advertise in . . . local newspapers
in Washington, D.C., the subject matter of the Drudge Report is
directly related to the political world of the Nation’s
capital and is quintessentially “inside the Beltway” gossip
and rumor. . . .
Drudge’s motion to dismiss or transfer for want of personal
jurisdiction therefore will be denied.
===========
JURISDICTION1.
Conflict of Laws in Broad Strokes
Many e-mails and all Websites are inter-jurisdictional.
Conflicts of Law is the branch of law that addresses which
state’s or province’s courts may be used by an aggrieved
victim and the separate question of which system of law will be
applied. Nuances of the Law of Conflicts are beyond the scope of
this paper. The reader is referred to Dicey and Morris, The
Conflict of Laws. Suffice it to say that, under the law of most
jurisdictions, the plaintiff can usually choose to sue in any
among the jurisdictions wherein the defendant is domiciled or
carries on business, or in which the tort was committed (see,
for example, Rule 13 of the Supreme Court Rules). Once the
plaintiff has chosen a court system, the procedural rules of
that jurisdiction are applied to the case. Procedural rules are
separate from the substantive rules of law to be applied to the
case. The substantive rules of the jurisdiction chosen will be
presumed to be applicable unless some party establishes that the
law of a different province or state ought to be applied to the
case. If the application of the law of that jurisdiction is
challenged as inappropriate, courts will usually apply the law
of the jurisdiction which has “a real and substantial
connection” with the defamation at issue. In Canada, the law
of defamation is largely a provincial matter, being “property
and civil rights”, and therefore is governed by the
legislation of the applicable Canadian province or territory.
For the most part (outside Quebec), provincial and territorial
legislatures have simply encoded the pre-existing judge-made
common law, making apparently minor, but sometimes critical,
adjustments. As a result, at any given time, there are
differences between the law of defamation in BC and that in
other Canadian jurisdictions. International differences are
potentially far more significant to any given case. In
broad strokes:
(a) the plaintiff will often be able to choose the jurisdiction
in which to sue (the “Forum”);
(b) the procedural law of the Forum will be applied to the case;
(c) unless someone
(plaintiff or defendant) argues otherwise, the substantive law
of the Forum will also be applied to the case;
(d) if someone does
argue that a foreign system of substantive law should be
applied, the court will determine which system ought to be
applied and, if it is decided that a foreign system of
substantive law “has a real and substantial connection to the
tort”, then the dictates of that law must be proved as a fact
(usually through testimony of an expert licensed practitioner (a
lawyer) from that jurisdiction, although, in some instances, a
Canadian judge in one province or a US judge in one state or
district will interpret the dictates of another province’s or
state’s legislation without the need of an expert).
All of this is exactly the law, no more and no less, than would
apply to a defamatory postcard, or ink on paper in an envelope,
sent by snail mail from one jurisdiction to another. As complex
as this system of Conflicts of Laws must seem, it was almost
workable in the “old-tech” world.
******************
Some
Issues Concerning Websites
Again
Please NOTE: www.securitiesfraud.org
does not believe in everything on this Legal Page but
none-the-less we are dedicated to fair and unbiased reporting of
the FACTS! And we are just as curious and concerned about
the Rules, Laws, Regulations, Codes, Treaties, Treatises,
Agreements, Pacts and other Legalities of websites of this
nature. WWW.SecuritiesFraud.org
seeks only to disseminate information and act as a Media
Organization INTERNATIONALLY to protect the common investor!
Whether
protecting United States of America Citizens, while being
located outside the United States, or protecting citizens of
other Nations while being located inside the United States.
We seek a singular global governing body and governing GLOBAL
Court System here on Earth where all persons (Humans) have an
equal right to basic freedoms.
In
the United States of America the citizens live by the
Constitution of the United States of America wherein the
founding father's of that Nation set forth basic
freedoms...these freedoms together with the best laws and
freedoms in other Nation's across the planet need to be applied
equally. This website uses mirrored sites and www.securitiesfraud.org
encourages the regular
USE
OF ALL DATA CONTAINED HEREIN, WITH THE CONDITION THE RE-POSTER
OF DATA ACCEPTS ALL LIABILITY FOR SAID DATA FROM THE MOMENT THE
RE-POSTER TAKES POSSESSION OF SAID DATA, Re-Poster must also
agree to not use data in a fashion in which is meant to be used
to spread defamation, libel or slander causing damage to a
person or entity who is written about on the retractions page!
This means when you take possession for redistribution of any
data on this site: www.securitiesfraud.org
you are accepting the liability and responsibility to come back
to the site often enough to check for new postings to this
retraction page so that you may update your disseminated
information: you may always reach the retraction page from
our home page: www.securitiesfraud.org
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
ISSUES
INVOLVING WEBSITES
Websites
like: www.securitiesfraud.org
It
is probable that every conceivable type or variety of person and
institution has created a Website for every conceivable purpose.
These will inevitably involve all of the problematic issues for
free speech, such as hate and obscenity, at the low end of the
usual scale of social utility, all the way to significant
educational, scientific and democratic public purposes, at the
other end of the scale. If, when, and as the courts consider
application of defamation law to Websites, the following issues
may arise.
(a) Is a Website Publication?
A Website is electronic bits and bytes controlled and stored by
or on behalf of its sponsor and available to be browsed by a
surfer on the Net.
By analogy to the physical, as opposed to the cyber, world, the
Website sponsor is a little like an exhibitor at a fair or show
who may lease a booth or space from an organizer.
In traditional libel law, an exhibitor is exposed to liability
for damage to the reputation of others. Furthermore, the
traditional law of libel makes no distinction as to whether the
communication occurs on private or public property. So there is
the potential for liability, whether the communication occurs in
the author’s private home, commercial premises, or in all but
very few institutional contexts (court testimony and
parliamentary debate are cloaked with absolute privilege).
One might wonder if the author of a Website “publishes.” As
a practical matter, the author of the Website does not initiate
the communication. Rather, the surfer decides to browse the
site. Can this be considered publication? It is submitted the
answer is “yes”. Defamatory material may be “published”
by simply being displayed. There are plenty of cases involving
picketing, display exhibitors, posters, signs, cartoons,
pantomime, symbols, etc., and all of these activities are found
to be publication. It is generally trite law that communication
may be by any means whatsoever.
(b) Libel or Slander
Whether a given defamation will be treated as a libel or a
slander can be problematic in respect of some aspects of
Websites. The traditional distinction between libel (in written
form) and slander (spoken words) does not translate readily to
all aspects of Websites. There are a number of problems.
Firstly, we should note that the distinction between the law of
libel and slander is important. In a case of libel, once it is
determined that the communication is defamatory, there are
presumptions against the author or publisher. These presumptions
are often critical to the viability of the lawsuit. In slander,
there is often a requirement of proof of special damages or
actual damages. As a result, the distinction is significant. It
can be critical to establish that the law of libel applies, as
opposed to the law of slander.
Secondly, Websites may, and indeed do, communicate by means of
the spoken word. CBC and commercial outlets transmit, via the
Internet, what is, for many purposes, very similar to the
experience afforded by a radio broadcast. However, such
“Internet radio” will probably not qualify as
“broadcast” in BC because of the definitions in the Libel
and Slander Act. Section 2 of the BC Act deems words in a
broadcast “to be published and to constitute libel”. Under
s. 1 of the Act:
“broadcasting” means the dissemination of writing, signs,
signals, pictures, sounds or intelligence of any nature intended
for direct reception by, or which is available on subscription
to, the general public
(a) by means of a device utilizing electromagnetic waves of
frequencies lower than 3 000 GHz propagated in space without
artificial guide, or
(b) through a community antenna television system operated by a
person licensed under the Broadcasting Act (Canada) to carry on
a broadcasting receiving undertaking,
and “broadcast” has a corresponding meaning;
“Internet radio” would not qualify, it is submitted, because
it does not utilize electromagnetic waves propagated in space
without artificial guide, nor does it usually utilize,
typically, an antenna.
As a result, one may wonder if the courts will apply libel law
or slander law to given content which may be a combination of
visual and spoken information transmitted by “Internet
radio”. It is submitted that British Columbia’s Libel and
Slander Act is out-of-date.
Courts in Canada, the United States and Britain have ruled that
television broadcast, in the absence of deeming legislation, is
slander on some authorities and libel on others. On some
authorities, the spoken word is treated as libel if the words
are apparently read from a script. On others, the courts rule
that televised speech is slander and point to the impermanence
or transitory character shared by both broadcast, on the one
hand, and the personally spoken word, on the other. In these
situations in British Columbia, the deeming sections of the Act
prevail. But what happens where the deeming does not apply, as
with Internet Radio or TV? This issue makes a very big
difference to outcomes.
The legislation of other provinces (Alberta, Manitoba, New
Brunswick, Newfoundland, PEI and the two or three of the
territories) assimilates the law of slander into the law of
libel. Accordingly, if the case is governed by the substantive
law of those jurisdictions, restrictions applicable to slander
would not be available as defences. (See Brown, pp. 8-6 to 8-13
for a listing of the contradictory cases and reference to
numerous academic articles on the application of law of libel
and slander, respectively, to a variety of technologies and
means of communication.) Suffice it to say, for the present
purposes, that the most enlightened trend is toward application
of the law of libel to any technology tending to permit or
facilitate permanence and widespread dissemination.
~~~~~~~~~~~~~~~~~~~~~~~~
Agreement
on Jurisdiction
Defamation is not usually predicted by the parties, particularly
the plaintiff. As a result, there is almost never a pre-existing
agreement between a plaintiff and a defendant, in advance of any
given defamation, as to where a lawsuit will be launched, if one
becomes necessary, nor is there an agreement as to which system
of law will apply. The parties could come to an agreement on
these points after the fact, but they seldom do. In my
experience, there is almost never an agreement to arbitrate
privately a defamation claim, perhaps because plaintiffs seek a
public vindication.
~~~~~~~~~~~~~~~~~~~~~~~
US
Cases on Jurisdiction
In the 1996 Arizona District Court case of Edias Software
Intern. v. Basis Intern. Ltd. the plaintiff brought an action
against the defendant for breach of contract, libel, defamation,
tortious interference with contract and prospective advantage,
and violation of the US Lanham Act. The defendant sought an
order dismissing the action for lack of jurisdiction. The
defamation portion of the claim revolved around allegations that
the defendant posted defamatory e-mail messages to its customers
about its contract dispute with the plaintiff, and issued a
“press release” on its CompuServe WebPage and in a computer
forum. Citing the US Supreme Court case of Calder v. Jones the
Arizona Court confirmed that libelous statements by a
non-resident can form the basis for jurisdiction in the
plaintiff’s forum. The Court concluded that the e-mail,
WebPage and forum message were directed at Arizona and allegedly
caused foreseeable harm to the plaintiff. The defendant’s
application was dismissed.
In the 1996 decision in Heroes, Inc. v. Heroes Foundation, the
District Court for the District of Columbia found jurisdiction
in circumstances where the defendant had an Internet homepage
that solicited donations and provided a toll-free telephone
number for donors.
In the 1996 case of Inset Systems, Inc. v. Instruction Set, Inc.
the plaintiff, a Connecticut company, brought a trademark
infringement action against the defendant, a Massachusetts
company, in Connecticut. The defendant applied for a order
dismissing the action for lack of personal jurisdiction and
improper venue. The Court dismissed the motion, holding that the
defendant’s advertising via the Internet was solicitation of
sufficient repetitive nature to satisfy the “solicitation of
business” provision of the Connecticut long-arm statute.
Although it appears that the decision found jurisdiction solely
on the basis of the defendant’s Internet presence the court
may have been influenced by the fact the defendant also had a
toll-free number included in its website. In finding
jurisdiction the Court said [at p. 165]:
In the present case, Instruction has directed its advertising
activities via the Internet and its toll-free number toward not
only the state of Connecticut, but to all states. The Internet
as well as toll-free numbers are designed to communicate with
people and their businesses in every state. Advertisement on the
Internet can reach as many as 10,000 Internet users within
Connecticut alone. Further, once posted on the Internet, unlike
television and radio advertising, the advertisement is available
continuously to any Internet user. ISI has therefore,
purposefully availed itself of the privilege of doing business
within Connecticut.
In the 1997 Arkansas District Court case of Smith v. Hobby Lobby
Stores, Inc. the defendant retailer third-partied the Hong Kong
manufacturer of an artificial Christmas tree that allegedly
caused a fatal house fire. The third party applied to dismiss
for lack of personal jurisdiction. The Court granted the motion
concluding that the third party’s advertisement in a trade
publication that appeared on the Internet was insufficient
“contact” with the jurisdiction to support hauling it into
court.
In the 1997 New Jersey District Court case of Weber v. Jolly
Hotels the Court held that an Italian Corporation’s use of an
Internet computer network to advertise its hotels in Italy did
not amount, on its own, to a purposeful availment of New Jersey
law for the purposes of determining jurisdiction. The plaintiff,
a New Jersey resident, was injured while vacationing at one of
the defendant’s hotels in Italy. The Court concluded [at p.
334] that “advertising on the Internet is not tantamount to
directing activity at or to purposefully availing oneself of a
particular forum.”
In CompuServe, Inc. v. Patterson the plaintiff company sought a
declaration that it had not infringed the defendant’s
common-law trademarks or otherwise engaged in unfair competition
in respect of computer software developed by the defendant. The
Sixth Circuit Court of Appeals reversed a lower court decision
which had dismissed the action for lack of personal
jurisdiction. In reaching its conclusions the Court found that
the defendant had purposely availed himself of benefits of doing
business in the plaintiff’s home state and that the action
arose from the defendant’s contacts with the state in
question, in this case Ohio. The defendant had placed software
exclusively on the plaintiff’s website, had used the website
to sell and advertise his software, and had threatened, via
e-mail messages sent to Ohio, to seek an injunction and damages
against the plaintiff regarding its sales of his software if the
plaintiff failed to comply with his demands. The Court said [at
p. 1264]:
There is no question that Patterson himself took actions that
created a connection with Ohio in the instant case. He
subscribed to CompuServe, and then he entered into the Shareware
Registration Agreement when he loaded his software onto the
CompuServe system for others to use and, perhaps, purchase. Once
Patterson had done those two things, he was on notice that he
had made contracts, to be governed by Ohio law, with an
Ohio-based company. Then, he repeatedly sent his computer
software, via electronic links, to the CompuServe system in
Ohio, and he advertised that software on the CompuServe system.
Moreover, he initiated the events that led to the filing of this
suit by making demands of CompuServe via electronic and regular
mail messages.
In Maritz, Inc. v. Cybergold, Inc., a trademark infringement
action, the Missouri District Court found it had jurisdiction
over a California operator of an Internet site that maintained a
mailing list of Internet users for advertising, knew that its
information would be transmitted globally, had transmitted
information into Missouri over a hundred times, and allegedly
caused economic injury to a Missouri corporation. The
defendant’s website provided information about the
defendant’s service, which, at the time, was not operational.
The service was designed to provide subscribers with information
in the form of advertisements based on the subscribers
particular interests. The information would be posted to a
mailbox set up for each subscriber. The Court concluded, among
other things, that the defendant had
. . . obtained the website for the purpose of, and in
anticipation that, internet users, searching the internet for
websites, will access CyberGold’s website and eventually sign
up on CyberGold’s mailing list. Although CyberGold
characterizes its activity as merely maintaining a ‘passive
website,’ its intent is to reach all internet users,
regardless of geographic location. [p. 1333]
As a result, the Court concluded [at p. 1334] that the defendant
“through its internet activities, has purposely availed itself
of the privilege of doing business with this forum such that it
could reasonably anticipate the possibility of being hauled into
court here .”
Like the Inset Systems case, Maritz suggests that merely having
a website presence accessible in a particular state may result
in jurisdiction being found.
In contrast, the New York District Court in the 1996 case of
Bensusan Restaurant Corp. v. King held that the mere fact that
Internet users can gain information about a person or company
from an Internet site is not necessarily the equivalent of that
person or company advertising, promoting, selling or otherwise
making an effort to do business in a particular state. The Court
concluded that there must be something more to establish that a
party is directing activities towards that particular
jurisdiction. In Bensusan the Court found that the defendant, a
Missouri company, had set up a website with a Missouri telephone
number posted so that people could order tickets to attend shows
at the defendant’s nightclub in Missouri. The nightclub had
the same name as a New York nightclub owned by the plaintiff.
The plaintiff sued, but the Court dismissed the action on the
basis of lack of jurisdiction. The Court said that the mere
setting up of the website with a Missouri telephone number did
not amount to an offer by the defendant to sell products in New
York. In this case, there was no allegation that any infringing
products (i.e., tickets) were shipped to New York or that any
other infringing activity was directed at New York.
An often-cited case regarding jurisdiction is the 1997
Pennsylvania District Court case of Zippo Mfg. Co. v. Zippo Dot
Com, Inc. [see for example the BC case, Braintech]. In Zippo the
Court established a sliding scale for determining jurisdiction
in cases involving the Internet. The Court said [at pp.
1123-1124] that
. . . (t)he Internet makes it possible to conduct business
throughout the world entirely from a desktop. With this global
revolution looming on the horizon, the development of the law
concerning the permissible scope of personal jurisdiction based
on Internet use is in its infant stages. The cases are scant.
Nevertheless, our review of the available cases and materials
reveals that the likelihood that personal jurisdiction can be
constitutionally exercised is directly proportionate to the
nature and quality of commercial activity that an entity
conducts over the Internet. This sliding scale is consistent
with well developed personal jurisdiction principles. At one end
of the spectrum are situations where a defendant clearly does
business over the Internet. If the defendant enters into
contracts with residents of a foreign jurisdiction that involve
the knowing and repeated transmission of computer files over the
Internet, personal jurisdiction is proper. E.g. CompuServe, Inc.
v. Patterson. 89 F. 3d 1257 (6th Cir. 1996). At the opposite end
are situations where a defendant has simply posted information
on an Internet Web site which is accessible to users in foreign
jurisdictions. A passive Web site that does little more than
make information available to those who are interested in it is
not grounds for the exercise (of) personal jurisdiction. E.g.
Bensusan Restaurant Corp. v. King 937 F. Supp. 295 (S.D.N.Y.
1996). The middle ground is occupied by interactive Web sites
where a user can exchange information with the host computer. In
these cases, the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of
the exchange of information that occurs on the Web site. E.g.
Maritz, Inc. v. Cybergold Inc., 947 F. Supp. 1328 (E.D. Mo.
1996).
In
Zippo the Court found jurisdiction on the basis that the
defendant online computer news service purposefully availed
itself of doing business in Pennsylvania by operating an
Internet site to advertise and solicit customers for its service
and by entering contracts with thousands of individuals and
seven access providers in Pennsylvania for the purpose of
providing those individuals with its service.
In
the 1997 case of Cybersell, Inc. v. Cybersell, Inc. (decided
after Zippo) an Arizona corporation that advertised for
commercial services over the Internet (the plaintiff) brought an
infringement action against a Florida corporation (the
defendant). The defendant sought to dismiss for lack of
jurisdiction. The Court of Appeal upheld a lower court’s
dismissal of the action on the grounds that the defendant’s
use of the name “Cybersell” in a passive home page on the
world wide web was not enough to support the conclusion that it
had purposefully availed itself of the privilege of doing
business in Arizona and thus was not subject to personal
jurisdiction in Arizona.
In Telco Communications v. An Apple A Day (1997), the Virginia
District Court had to deal with an defamation action brought by
a seller of long-distance services against a telemarketer. The
defendant telemarketer had posted allegedly defamatory press
releases regarding the plaintiff company on a passive Internet
site. The defendant had also provided a telephone number at
which he could be contacted. The press release also included a
solicitation for business. The Court dismissed the defendant’s
application to dismiss for lack of personal jurisdiction on the
grounds that the defendant knew the press releases would be
disseminated in Virginia. In reaching its decision the Court
referred to Inset Systems for the proposition that a continuous
Website constituted the purposeful doing of business in the
state [p. 406]. The Court also referred to Bensusan and Zippo.
In the 1998 United States District Court, District of Columbia,
case of Mallinckrodt Medical v. Sonus Pharmaceuticals the
plaintiff sought a declaration that patents relating to a
certain product were invalid and, further, that one of the
defendants had made false and defamatory statements regarding
the plaintiff. Several of the defendants moved to dismiss,
including the defendant alleged to have made the defamatory
statements. In dismissing the plaintiff’s action in respect of
the defamation allegation, the Court concluded there is no
nationwide jurisdiction for defamation actions. It stated [at p.
272]:
The AOL transmission from Seattle to Virginia, which was
subsequently posted on an AOL electronic bulletin board and may
have been accessed by AOL subscribers in the District of
Columbia, cannot be construed as ‘transacting business’ in
the District of Columbia. The message was not sent to or from
the District of Columbia, the subject matter of the message had
nothing to do with the District of Columbia, and neither
plaintiffs nor Sonus reside in, have their headquarters in or
are incorporated in the District. Other than the fact that some
people may have visited the electronic bulletin board and read
the message from here, the AOL posting has no connection to this
jurisdiction. The act of posting a message on an AOL electronic
bulletin board - which certain AOL subscribers may or may not
choose to access, according to each individual’s tastes and
interests - is not an act purposefully or foreseeably aimed at
the District of Columbia.
*********************************************
Canadian
Cases on Jurisdiction
In
Braintech, Inc. v. Kostiuk the defendant was alleged to have
used the Internet to transmit and publish defamatory information
about the plaintiff company on an Internet bulletin board
established to facilitate the exchange of information about
technology stocks and investments. The plaintiff company had
maintained an office in Texas and its research and development
activities were carried on in Texas. At one time, its head
office was in Texas. The defendant was a British Columbia
resident. The plaintiff company commenced an action in Texas and
obtained default judgment. The defendant subsequently sought an
order in BC Supreme Court declaring, among other things, that
the Texas court had acted without jurisdiction. The matter
eventually made its way to the Court of Appeal, where it was
held that the Texas default judgment should be set aside. The
Court of Appeal concluded that the bulletin board was a
“passive” site accessible only “to users who have the
means of gaining access and who exercise that means [para.
61].” It went on to say that in the circumstances the
complainant had to offer “better proof that the defendant
(had) entered Texas than the mere possibility that someone in
that jurisdiction might have reached out to cyberspace to bring
the defamatory material to a screen in Texas [para. 62].” It
added that it. . . would create a crippling effect on freedom of
expression of, in every jurisdiction the world over in which
access to Internet could be achieved, a person who posts fair
comment on a bulletin board could be hauled before the courts of
each of those countries where access to this bulletin could be
obtained.
In 1998, in Kitakufe v. Oloya, an Ontario resident sued another
Ontario resident, the author of an article published in a
Ugandan newspaper, New Vision. New Vision was also available at
a Website on the Internet, accessed by individuals in Ontario.
The defendant author applied for a stay of proceedings on the
basis that Uganda was the appropriate jurisdiction. The court
disagreed and ruled that the plaintiff sustained the injury (if
any) “in his community . . . Ontario.” The location of the
Website was not determinative.In 1996, the publisher of the
Vancouver Sun faced a claim in District Court in California in
Naxos Resources (USA) Ltd. v. Southam Inc. The Vancouver Sun
article was available to be accessed on the Internet. The
California court applied its two-prong “long arm”
legislation. The first branch of the test was satisfied that the
Vancouver Sun and Southam had made a “purposeful availment”
of the jurisdiction of California by posting its article.
However, the California court declined jurisdiction on the basis
there was not a real and substantial connection between the
alleged defamation and California.
BULLETIN
BOARDS, INFORMATION SERVICES, CHAT ROOMS
Before enactment of the American Communications Decency Act
there were two key “judge-made” American decisions
addressing the liability of Website sponsors for bulletin
boards, information services and chat rooms which may contain
defamatory content. These two seminal American cases were:
Cubby, Inc. v. CompuServe Inc. (hereinafter the “CompuServe
case”) and Stratton Oakmont, Inc. v. Prodigy Services Co.
(hereinafter the “Prodigy case”). The cases have now been
overtaken in American law by the Communications Decency Act but
they remain significant for other jurisdictions not governed by
that Act.
In the first of these cases, CompuServe subscribers could access
a newsletter with the unfortunate name “Rumorville”. The
defendant CompuServe did not review the content of this
newsletter prior to making it available to CompuServe
subscribers. The court ruled in favour of the defendant, in
effect deciding that CompuServe could avail itself of the
“innocent dissemination” defence discussed above with
reference to e-mail. Although an American case, the decision
does not appear to turn on the First Amendment but, rather, on
the bounds of defamation law. The trial judge found that
CompuServe had no more editorial control over the content at
issue than would a public library, a bookstore or a newsstand.
In effect, CompuServe prevailed because it was able to disprove
any negligence on its part, that is, any circumstance which
ought to have put them on notice that Rumorville contained
potentially defamatory material. (See discussion of the case at
Brown, p. 7-62 and Gatley, p. 147, note 74.) It is submitted
that the “innocent dissemination” defence is an
unsatisfactory basis to exonerate an information service,
bulletin board, chat line, etc. If the plaintiff had put
CompuServe on notice of the allegation that the content was
defamatory, then CompuServe’s innocent status would evaporate
and it would find itself with the choice of suppressing the
content based on unsubstantiated allegations, on the one hand,
or performing the function of an editor, on the other hand, a
task for which it might be badly unsuited.
The Prodigy case also arose in the United States and involved a
bulletin board. Prodigy operated a bulletin board called
“Money Talk”, which permitted subscribers to post statements
regarding markets and investments. A user repeatedly posted an
accusation on the bulletin board that the plaintiff had been
fraudulent in connection with a stock offering. Prodigy had
stipulated guidelines for users and had reserved the right to
edit postings. It had not only installed software to screen
postings, but also supplied a monitor who supervised bulletin
board postings. Users were notified of both the software
screening and the ability of the monitor to edit or remove
postings. On these facts, on preliminary interlocutory motions,
the court ruled that Prodigy was, in fact, performing the role
of a “publisher” and not that of an innocent disseminator.
The Prodigy case, following, as it did, the CompuServe case, led
critics to conclude that the operator of a bulletin board or
information service would not be liable if there was no
editorial control attempted, but would be liable if the attempt
was made and failed, no matter how reasonable the attempt.
???????????????????????????????????
Prompt
retraction and apology can have the salutary effects of:
See
our Retractions Page HERE
(a) mollifying or placating the victim of any defamation;
(b) mitigating or lessening damages at commonlaw (that is,
judge-made law); and
(c) mitigating or lessening damages under legislation such as
BC’s Libel and Slander Act, ss. 7 and 10.
Apology and retraction is a very important aspect of any
consideration of defamation law.
Simply put, a steadfast refusal to apologize can aggravate
damages, whereas granting an apology can reduce them, often
substantially. In a recent British Columbia decision, Brown v.
Cole, damages were allowed in a total amount of $450,000 plus
interest of $177,000. Although the slander was communicated to
very few people, and the plaintiff did not establish specific
loss of business income, the trial judge remarked on the
significance of a failure by the defendant to retract or
apologize. Damages were subsequently reduced by the BC Court of
Appeal but still came to $160,000 plus interest.
There is plenty of authority that, where a defendant repeats a
libel and is unrepentant and refuses an apology, damages will be
larger. The recent cases Southam and Baines v. Chelekis and Hill
v. Church of Scientology would be two good examples among many
such cases.
Historically, a book publisher and newspapers could recall
volumes or papers and destroy or remove defaming material but
nobody sought to retrieve copies which had already been
distributed.
The parallel to cyberspace is imperfect. It is not apparent (to
this writer) how a publisher retracts material from electronic
databases operated by independent third parties such as
CompuServe, AOL or LEXUS. Defamatory material may be permanent
for practical purposes. Some thought should be given by
electronic publishers to a requirement in license contracts with
those independent third parties (such as CompuServe, AOL, LEXUS,
etc.) that the publisher can require elimination of the material
which leads to a claim in defamation. A search engine may not
call up an apology each time the original material is accessed.
As an alternative, a hypertext link to the original defamatory
material, right at the offending portion of the text may be
technically feasible. Deletion from all databases is a practical
problem and would pose a risk of historical revisionism. In the
pre-cyber world, libel plaintiffs don’t usually seek
destruction of all copies of newspapers or magazines in
libraries or newspaper morgues more and there is an issue
whether it is socially desirable to delete records without
leaving warning for the reader.
CONCLUSION
Little that is conclusive can be said. Courts will face contests
between 1) private interests in reputation, and 2) the utility
of unfettered and efficient communication.
The law of defamation was largely refined by the courts at the
same time as the legal system was addressing the last great
technological revolution, the Industrial Revolution in the late
18th and early 19th centuries. Movable type and the printing
press was an early industrial technology. Steam, coal, steel,
railways, canals, and all the rest of the revolution led to
judicial and legislative innovations such as
limited-liability-companies, almost all of our current contract
law, Sale of Goods legislation, the Reform Acts of 1832, and all
of the intricate law necessary to permit financing.
It is submitted that the courts and governments reacted very
well to the Industrial Revolution, creating doctrine which
reasonably facilitated developments, but also restrained
excesses. The history has been written, of course, by the
victors, but it nonetheless appears that the challenge was met.
We can expect courts to address the Cyber Revolution reasonably
well, also. They naturally understand information retrieval
systems and the value of standardized protocol. It is submitted
that privilege, rather than innocence (in the sense of
ignorance), should be the key pre-existing legal doctrine which
deserves expansion. Appropriate legislation is the cyber
equivalent of infrastructure and it desperately needs attention
here in British Columbia.
LIST OF AUTHORITIES
CASELAW
Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y.
1996).
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
Braintech, Inc. v. Kostiuk, [1999] B.C.J. No. 622 Q.L. (C.A.).
Brown v. Cole, [1996] B.C.J. No. 2046 Q.L. (S.C.), Holmes J.
Brown v. Cole, [1998] B.C.J. No. 2464 Q.L. (C.A.).
CompuServe, Inc. v. Patterson, 89 F. 3d 1257 (6th Cir. 1996).
Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y.
1991).
Cybersell, Inc. v. Cybersell, Inc., 130 F. 3d 414 (9th Cir.
1997).
Dominion Telegraph Co. v. Silver (1882), 10 S.C.R. 238.
Edias Software Intern. v. Basis Intern. Ltd., 947 F. Supp. 413
(D. Ariz. 1996).
Egerton v. Finucan, [1995] O.J. No. 1653 Q.L. (Ont. Gen Div.),
B. Wright J.
Godfrey v. Demon Internet Ltd., Q.B. (U.K.), Strand, London
1998-G-No. 30, 26 March 1999, Morland J. (as yet unreported).
Heroes, Inc. v. Heroes Foundation, 958 F. Supp. 1 (D.D.C. 1996).
Hill v. Church of Scientology, [1995] 2 S.C.R. 1130.
Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161
(D. Conn. 1996).
Kitakufe v. Oloya, [1998] O.J. No. 2537 Q.L. (Ont. Gen. Div.),
Himel J.
Mallinckrodt Medical v. Sonus Pharmaceuticals, 989 F. Supp. 265
(D.D.C. 1998).
Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo.
1996).
Naxos Resources (USA) Ltd. v. Southam Inc., 1996 W.L. 662451
(C.D. Cal.)
New York Times v. Sullivan, 376 U.S. 254 (1964).
Russell v. Nova Scotia Power Inc., [1996] N.S.J. No. 178 Q.L.
(S.C.), Boudreau J.
Simons v. Carr & Co. (1996), 41 Alta. L.R. (3d) 13 (Q.B.),
Nash J.
Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356 (W.D. Ark.
1997).
Southam and Baines v. Chelekis and others, [1998] B.C.J. No. 848
Q.L. (S.C.).
Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep.
1794 (1995).
Telco Communications v. An Apple A Day, 977 F. Supp. 404 (E.D.
Va. 1997).
Weber v. Jolly Hotels, 977 F.Supp. 327 (D.N.J. 1997).
Zeran v. America OnLine, Inc., 129 F. 3d 327 (4th Cir. 1997).
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D.
Pa. 1997).
LEGISLATION
Telegraphs, Telephones, and Radiotelegraphs (Communications
Decency Act of 1996), 47 U.S.C.S. § 230 (Law. Co-op Supp.
1997).
Defamation Act 1996, c. 31 (U.K.).
Libel and Slander Act, R.S.B.C. 1996, c. 263.
ARTICLES AND AUTHORITATIVE TEXTS
R. E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto:
Carswell, 1994).
A.V. Dicey and J.H. Morris, The Conflict of Laws, 12th ed.
(London: Sweet & Maxwell, 1993).
P. Milmo and W.V.H. Rogers, eds., Gatley on Libel and Slander,
9th ed. (London: Sweet & Maxwell, 1998).
G. Takach, "Ruling shows courts will apply current libel
law to Net," Lawyers Weekly, 30 October 1998.
C. Walsh, "Territoriality and Choice of Law in the Supreme
Court of Canada" (1997), 76 Canadian Bar Review 91.
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