The flux in jurisdictional laws of the various states in relation to Internet defamation presents some difficult First Amendment challenges. If a speaker makes a statement online, it is arguably published throughout the world. If that speaker cannot reasonably predict which of the many potential sets of laws circumscribing free speech may apply to him, the effect of that uncertainty may chill his speech. In other words, there is an ongoing concern that the very uncertainty about what is and is not prohibited from state to state may create a situation in which speakers will simply elect not to express their viewpoints online. Surely, this is contrary to the spirit of the First Amendment.
The most obvious laws that circumscribe free speech relate to the prohibition against defamation: an untrue statement about another that is communicated to a third party causing harm. States continue to develop different standards for determining whether their courts have jurisdiction over defamatory statements made by out-of-state authors who write over the Internet. New Jersey and New York offer very good examples of how different such jurisdictional standards can be.
New Jersey courts generally take a more lenient approach when determining whether jurisdiction exists in defamation cases. Essentially, a New Jersey court will look to see whether a message over the Internet specifically targets residents of New Jersey. In one recent New Jersey case, the Court held that it did in fact have jurisdiction. In that case, defamatory statements were made on the Internet regarding a female pilot who resided in New Jersey. The Court reasoned that since the person who made the comments knew that the target of the speech lived in New Jersey, he could reasonably have expected that New Jersey courts would have jurisdiction over the matter.
Courts in some other states, however, have declined to find jurisdiction based upon the impact of the online defamatory statements. Most notably, courts in many states have declined to find jurisdiction over comments made on websites based on a determination that the sites were passive websites not targeted to that particular state.
A good example is New York. New York courts have refused to find jurisdiction over defamatory comments made over the Internet, even if a person in New York suffered harm as a result of the comments. In fact, New York courts require defamation plaintiffs to overcome a higher burden when proving jurisdiction. In many cases, litigants have attempted to get around New York’s harsh rules by trying to claim that the defendant was transacting business within the state. However, New York courts will look very carefully at how much business is actually being transacted. Often, cases will be dismissed because the defamer has very few contacts with New York.
In conclusion, jurisdictional requirements for defamation claims vary from state to state. It is imperative that an individual who wishes to pursue a defamation claim against an out-of-state resident be careful to bring that action in the correct jurisdiction. If done improperly, the case may either be dismissed, or the plaintiff runs the risk that he will run out of time to bring a defamation action in the proper jurisdiction before the applicable statute of limitations for defamation has passed.
Comments/Questions: ljm@gdnlaw.com
© 2008 Nissenbaum Law Group, LLC
Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com
The Digital Millennium Copyright Act: A valuable tool or a dangerous weapon?
It is critical that website operators fully understand their rights and responsibilities under the Digital Millennium Copyright Act (“DMCA”). This is particularly important for operators of social networking sites, blogs or other sites that allow third parties to publish content on the site. As more and more “traditional” websites now allow such postings -- one of the many aspects of the Web 2.0 age -- the importance of the DMCA grows.
The DMCA is a Federal statute that was enacted in the 1990’s which essentially modified copyright law in order to account for new technology, including the Internet. One aspect of the statute specifically provides for a limited immunity for websites posting content that might arguably infringe another’s copyright rights. Essentially, the law outlines certain protocols for webmasters to utilize, which includes providing an adequate way for those whose work has been infringed upon to contact the website and request the removal of the content. The DMCA generally says that if the website has engaged such protocols, and takes down content that is properly reported to it, it can have immunity from a copyright infringement claim. For this reason, it is critical that all websites who host third party content ensure that they are properly engaging in the protocols provided by the DMCA and include the appropriate instructions in their posted terms and conditions.
A little-known aspect of the DMCA applies to those reporting infringements. While the DMCA protocols allow a person whose rights have been infringed to request that the website remove the protected content, the statute also provides a penalty for a person who wrongfully utilizes this protection. The law provides for liability against the wrongful reporter, including payment of attorney’s fees, which may be payable to (a) the alleged infringer; (b) the website that removed the content; and/or (c) the copyright owner or licensee of the copyright owner. Essentially, the damages might be paid by anyone in one of those three categories who is injured as a result of the false report. Specifically, the DMCA states that: “[a]ny person who knowingly misrepresents under this section – (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or identification, . . .” is liable under the Act. 17 U.S.C. 512(f). In sum, there are two ways of being liable under this provision: (a) for indicating that a work is infringing if it is not or (b) for indicating that a work which was removed was in fact, not infringing and should have remained posted.
This penalty-based aspect of the statute was recently highlighted in a case currently pending in Illinois relating to the YouTube.com posting of rodeo competitions. In that case, Showing Animals Respect & Kindness v. Prof’l Rodeo Cowboys Association, an animal rights group posted video from a rodeo event on YouTube. The Rodeo Association then contacted YouTube and requested that the videos be removed because they infringed upon the Association’s copyright. SHARK, the animal rights group, filed suit indicating that the Association’s request violated the DMCA because it was based on a false claim. Its argument was that the Association knew that there was no copyright in the rodeo event, and therefore the request that the videos be taken down was not a rightful request to prevent infringement, but rather constituted a wrongful means of trying to remove content that was unfavorable to them. The case is ongoing.
Clearly, those reporting infringements should take caution in doing so. The Rodeo case highlights the importance of being reasonably certain that one has a viable claim for copyright infringement before making a request that a posting be removed under the DMCA.
Comments/Questions: ljm@gdnlaw.com
© 2008 Nissenbaum Law Group, LLC
Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com
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