Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

The Short(er) Arm of Florida’s Defamation Law

Posted by Seva on April 17, 2008

On the heals of the yesterday’s post about a recent B.C. case on cross-border defamation, my daily BNA Internet Law News report brought word of a Florida case, Internet Solution Corporation v. Marshall, in which the court found that it had no jurisdiction over an out-of-state blogger whose posts allegedly defamed the plaintiff, a corporation operating in Florida. Although it found that damage may have been suffered in Florida, it held that the blogger’s contact to the state was not sufficient to satisfy the Due Process Clause of the U.S. Constitution.

Having found “subject matter jurisdiction” (see also explanation at lawschoolhelp.com) because the matter concerned residents of different states and exceeded $75k, the court focused on whether it had personal jurisdiction. Determination of personal jurisdiction required a two part test, with the onus on the plaintiff:

(1) whether Florida’s “long-arm statute” allows the court to assume jurisdiction; and

(2) whether there are sufficient minimum contacts with the forum state to satisfy the Due Process Clause of the U.S. Constitution and traditional notions of fair play and substantial justice.”

From the court’s discussion and a cursory look at Florida’s long-arm statuteActs subjecting person to jurisdiction of courts of state”, it appears similar to the list presumptive categories of real and substantial connection set out in s. 10 of the CJPTA, albeit much less extensive. In particular, it also provides for personal jurisdiction for “tortious act within the state”. Similar to Canadian standards for locating a tortious act, a tort is committed in Florida “where an out-of-state defendant commits a tort that produces an injury in Florida”. Presuming that the blogger’s conduct was in fact tortious, the court found that ICS established a prima facie case that it has suffered damage in Florida through harm to its reputation in the community. Because the defendant’s affidavit did not address the issue of harm suffered in Florida, it did not rebut the plaintiff’s prima facie case. Thus, the first branch of the personal jurisdiction test, reference to Florida statutory law, was satisfied.

Here is where it gets interesting, at least from a Canadian perspective (as explained by Prof. Randazza at the Legal Satyricon, “this case is not really a landmark case — it followed well-worn grooves in the law”).

To satisfy the Due Process clause, ICS had to show the blogger to “have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Determining minimum contacts, courts apply a well-established three part test:

(1) the contacts must be related to the plaintiff’s cause of action;

(2) the contacts must involve some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum; and

(3) the defendant’s contacts with the forum must be such that the defendant should reasonably anticipate being haled into court there.

In the context of defamation, the seminal case dealing with Due Process is classic decision of the U.S. Supreme Court in Calder v. Jones.

Unfortunately for the plaintiff, it was not able to prove any of these factors. Specifically,

  • There was no evidence that the blogger specifically targeted Florida residents as the blog was “equally accessible to all persons in all states.” Mere accessibility of the in Florida did not amount to “purposeful availment”.
  • The blogger did not make any “Florida-specific” contacts.
  • Even if the blogger’s tortious conduct resulted in injury to ICS in Florida, “the single tortious act would not be sufficient to satisfy minimum contacts absent a showing of purposeful availment.”
  • “The fact that Marshall posted comments on her website … which were accessible to residents everywhere does not indicate that Marshall could reasonably anticipate being haled into a Florida court.”

Ultimately, the court found that because the blogger had no contact with Florida, she could not reasonably anticipate “being haled into court there.”

While this case is not about freedom of speech directly, it is about frivolous lawsuits, as best explained by Prof. Randazza:

I see attorneys in this state ignore their oath of attorney and file defamation suits here, hoping to simply punish the defendant by making him or her defend the case here.

Time and again, when these cases are brought before intelligent, thoughtful, and reasonable judges, the judges side with the due process clause of the Constitution, and not plaintiffs’ attorneys who knew, or should have known, that bringing suit here was improper.

In this context, the case is particularly important to Canadian and other bloggers who may find themselves being hauled into a U.S. court because of a posting – a concern that was expressed by a Vancouver blogger in a question to Michael Geist during his “E-Publishing & The Law” seminar presented by the Canadian Journalism Foundation. Hopefully, this decision now provides a little more certainty that the mere possibility that someone read a post in Florida or any other U.S. state will not be sufficient to haul that blogger to the courts of that state.

On a less positive note, as yesterday’s case indicates, Canadian law does not apparently draw a clear distinction between mere accessibility and specific targeting. Thus, if ICS was a B.C. company and brought the action here, it would appear that the mere fact that it suffered damage here would be sufficient for a B.C. court to find jurisdiction simpliciter over the blogger.

 

See also background information on this case at the Citizen Media Law Project.

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