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An Overview of Defamation Law - from a Church-based Doctrine to the Internet

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An Overview of Defamation Law - from a Church-based Doctrine to the Internet

Defamation Law has its origins in church doctrine and has undergone various significant changes over the last nearly 1,000 years. Because the action in the United States is based on state law, the elements one will need to prove may differ depending on the jurisdiction. In this Overview of Defamation Law, attorneys he presentation discusses both recent articles and cases addressing various aspects of a Defamation claim, including jurisdiction, venue, the requisite elements, and what is need to have success at summary judgment.

Presenters

Ken Kula
Senior Counsel
Buether Joe & Counselors, LLC.

Transcript

Ken Kula: Welcome to An Overview of Defamation Law by Quimbee. My name is Ken Kula. In this age of the internet, the possibility and occurrence of defamation is greater than ever before in history. Consequently, everyone should have a basic understanding of it. This presentation will give a brief overview of defamation law from its origins to its proliferation today. To do so, the presentation includes a number of course materials, including today's slides, complete with detailed presenter notes, current articles on defamation, and six cases that address defamation law in general or focus on specific aspects of the law in particular. You may follow along with those slides or simply sit back and enjoy our presentation on defamation law.

  In the end, it will provide you with an unique overview of defamation law, including an analysis of cases that provide an understanding of areas that are too often glossed over in other CLE programs. The cases and their specific topics that will be discussed are the following, first, John Bean Technologies Corp. versus B GSE Group. It's found at 480 Fed. Supp. 3rd 1274. It comes out of the district of Utah, is a 2020 case, and addresses basic elements of defamation action.

  The second case will be McDougal v. Fox News Network, LLC. It is found at 489 Fed Supp. 3rd 174. It comes out of the Southern District of New York and is also a 2020 case, and it addresses the differences between fact and opinion, a very important distinction in defamation law. The third case we'll discuss is Orchestrate HR, Inc. versus Blue Cross Blue Shield of Kansas. It's an unreported case and its number is 5:19-cv-4007. And it's found at 2021 Westlaw 1238254. It's a slip opinion from the District of Kansas and it was decided April 2nd, 2021, and it addresses the importance of specificity in a defamation action.

  The fourth case we'll review is Rice v. St. Louis University. It is also an unreported case, but its number is 4:19-cv-03166. And it can be found on Westlaw at 2020 Westlaw 3000431, and it is a slip opinion out of the Eastern District of Missouri, decided June 4th, 2020, and it will address the need for publication in a defamation action.

  The fifth case that we will discuss in detail is Van Deelan v. Bloomberg, L.P., another unreported case that can be found at 2021 Westlaw 401201, a slip opinion out of the Southern District of Alabama, decided earlier this year, January 8th, 2021, and it addresses venue. The final case that we will discuss is Sunlight Saunas, Inc. Versus Sundance Saunas, Inc., And it is found at 427 Federal Supp. 2nd 1032. It is an older case out of the District of Kansas, decided April 17th, 2006, and it will address internet defamation in general. Other cases may be mentioned in passing for the general principles associated with defamation law, but they will not be analyzed in-depth.

  With that basic summary of what we are going to cover, let's get started with an overview of defamation law from a church-based doctrine to the internet. Let's discuss the origins of defamation. Before the early 1300s, actions for the predecessor of defamation were obscure and purely within the jurisdiction of the church courts. This comes from an article entitled History of Defamation, English Legal History found at www.wordpress.com. Thereafter, the King's Court in England allowed legal recourse against a person who spoke words that damaged the good reputation of someone else. And that is the essence of a defamation claim, spoken words or written words if we're talking liable that damaged the good reputation of someone else.

  The article goes on to explain that it took hundreds of years to allow for such a quasi defamation action because the legal them in general "was much more concerned with the tangible actions and results of, for example, assault, theft, and murder." This is understandable back in those days, it is the actual physical actions that someone took, whether it be assault, theft, murder, or some other physical action that really was the concern of the courts, not mere words.

  Interestingly, before the 1500s and while defamation was still just a church-based doctrine "church courts tried defamation as a criminal offense and could only sentence the offender to penance, admittedly, quite a light punishment." That comes from the same article I discussed before, History of Defamation, English Legal History at www.wordpress.com.

  That all changed in 1507. The first common law defamation case on record was brought in 1507, where the King's Court changed its mind regarding me words and decided they could impact the honor of a man as much or even more so than physical attacks. At the time in 1507, three.

  Categories of defamation existed:

  1. Words accusing someone of a crime.

  2. Words accusing someone of being incompetent at their job.

  3. Words accusing someone of having a particular disease such as the French Pox, which was running a muck at that time.

  That also comes from the article that I discussed previously, which can be found at History of Defamation, English Legal History, www.wordpress.com.

  But let's move on. So fast-forward to the 20th century in America and another big change in defamation law took place. Before this change in the 1900s, the law did not distinguish between the status of whom was being defamed. For example, suppose in 1955, John Q. Public in America was a prominent businessman and aspiring local politician in Smallville, USA. And he had a neighbor, Jane Doe, and Jane Doe met with a newspaper reporter for The Town Crier. And Jane Doe tells the reporter that her neighbor, John Q. Public was a convicted pedophile and actively on the prowl in the neighborhood. Now, realize that none of that is true, but Jane Doe told the reporter that. Even though it wasn't true, the reporter then runs with the story without checking it out thoroughly, and the next day, The Town Crier's headline is "Smallville Own John Q. Public, a Convicted Pedophile is on the Prowl, Lock-up Your Kids!"

  Well, because the information was false and likely damaged John Q. Public's reputation, business, and possibly his PO political aspirations, in 1955, he would have likely prevailed against both Jane Doe and the newspaper, The Town Crier and it would not matter what John Q. Public's status was within the community. As I alluded to previously, this all changed. It changed in 1964. "The 1964 Supreme Court case, New York Times v. Sullivan established that a public figure must prove that not only was a false statement published, but that it was published with actual malice." this comes from the article Defamation, Slander, and Libel: The Basics, found at www.thebalancemb.com.

  Now suddenly, the status of the plaintiff, the one defamed became important. In this instance, and since New York Times v. Sullivan, if Mr. John Q. Public is considered a public figure, the changes from New York Times case would affect Mr. Public's lawsuit. The in particular and assuming Mr. Public was indeed a public figure, it now means that he must prove the following to prevail. He must prove actual malice. He must prove that "the person or media organization making the false statement knew or should have known it was false before published it anyway."

  They must have demonstrated reckless disregard for the truth. That's an important standard "Reckless disregard for the truth." Either a lack of fact-checking or printing the false story in spite of knowing the facts. This is a much higher standard to overcome, which makes it more difficult for public figures to win defamation lawsuits. That is what the court in New York Times v. Sullivan held.

  So with that background, let us turn our attention to the current state of the law of defamation and how, in particular, it is affected by the rise of the internet. So let's go over the basic elements of a defamation claim. An action for defamation is not based on a federal right. Consequently, it is always a state-law-based claim. The elements, however, are fairly uniform throughout the states. Granted, some states break out the elements a little more than others, but typically, all the components of the claim are the same and are present.

  For example, Utah is a fairly typical, and in that state, there are four elements. "To prevail on a defamation claim, plaintiff must prove defendants, one, published the statements concerning plaintiff, two, that the statements were false, defamatory, and not subject to a privilege, three, that the statements were published with the requisite degree of fault. We'll come back to explain that a little bit more. And four, that their publication resulted in damage. This comes from the John Bean Technologies Corp. case that I indicated earlier. It can be found at 480 Fed. Supp. 3rd. And in particular, this quote comes from pages 1321 through 22.

  Now, of course, based on New York Times v. Sullivan, the "requisite degree of fault" depends on who was being defamed. "Where the plaintiff is not, and I emphasize not a public figure, negligence is the requisite degree of fault." That comes from the John Bean Technology Corp. case at footnote 333 citing the Oman v. Davis School District court case. Now, harking back to our Smallville example, the court in John Bean Technology Corp. explained that it takes a certain element for a statement to be defamatory. And it explained what it takes for a statement to be defamatory the following. "A statement is defamatory if it 'impeaches an individual's honesty, integrity, virtue, or reputation and thereby exposes the individual to public hatred, contempt, or ridicule." That can be found in the case at 1322. Now, I look at the standard that is required for a statement to be defamatory. It's not just a bad statement about someone. It has to impeach an individual's honesty, integrity, virtue, or reputation and must expose the individual to public hatred, contempt, or ridicule. That's a high standard.

  The court went on to explain, however, that "a publication is not defamatory simply because it's meddlesome some or embarrassing to a plaintiff, or even because it makes a false statement about the plaintiff." That is important. Not every false statement about someone is defamatory. The court then went on to differentiate the standard defamation from defamation per se. With that introduction to basic defamation and illusion to defamation per se, let's take a closer look at the case of John Bean Techs Corporation.

  Okay. So John Bean Techs Corporation, we've talked about this or alluded to it earlier. It comes out of the district of Utah. It's a federal court case and can be found at 480 Fed. Supp. 3rd 1274. It was decided in August 2020. So let's talk a little bit about this. Here, we're talking about a manufacturer of ground support equipment for military aircraft and he brought, or they brought, it brought an action against its distributor alleging that defendants falsely represented to contractors and subcontractors that equipment was based on distributors designs and asserted claims for, among other things, defamation. The defendant brought those claims for defamation based upon the claims that the manufacturer brought.

  So I'm not going to go into the details of the facts with regards to what the plaintiff was claiming with regards to the trade secret claim. I will just talk about the defamation claim, which was a counterclaim brought by the defendant. But just to give a general overview, the plaintiff was JBT or John Bean Technology, and it was a player in the aviation industry for ground sport equipment that I just talked about, and there were certain pieces of equipment that it provided to manufacturers, and the defendant claimed that it was being wrongfully sued and it asserted several counterclaims, including defamation. And so the court had to address each of the claims, which were involving the trade secret claims as well as the counterclaims for defamation.

  And so without getting into the claims for trade secret, I'm going to go into the counterclaims for defamation and the defamation claims were actually based upon the contentions that were brought by the plaintiffs in their claim for trade secret misappropriation. And that was based upon the Trade Secrets Act, but as I indicated, I'm not going to go into that because it really is simply the counterclaim for defamation based upon the claim for trade secret theft that is really at issue here.

  So let's now turn to the counterclaims for defamation, which was count nine of the defendant's counterclaims. So again, JBT, the plaintiff alleges that defendants published numerous false statements that defame JBT and its products, and the defendants were arguing that they cannot be damaged because the critical statements were not actionable. Now, the court first addressed the statute limitations issue and the discovery rule and indicated that the discovery rule saves JBT's claims. That really isn't that important for this particular issue.

  The court explained that to prevail on a defamation claim, there were at least four elements that had to be established. One, that the perpetrator published the statements concerning the plaintiff, that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and for that their publication resulted in damages. They explained what the statement had to be, to be considered defamatory, and explained what statements were not considered defamatory. They also discussed what defamation per se was and that it had a more stringent standard or slander per se, which also had a more stringent standard. And they fall into particular categories. The court recognized four categories. One, charge of a criminal conduct, two, charge of a lonesome disease, three, charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office, and four, charge unchastity of a woman.

  That seems like definitely a remnant from long ago, where we're simply looking at the chastity or unchastity of a woman and not anything with regards to the unchastity of a man. However, that has carried over into my modern law with regard to defamation. And so things such as that and words that talked about those categories must be of such common notoriety that the injury can be presumed. And so, according to the elements that were established for defamation, if the mere words that a woman was unchaste, that presumes injury, and once you presume injury, then you have an unmistakable recognized injure statement. And so in this particular instance, JBT was claiming that the supplier had indicated that they stole certain information and that they lied about certain information and that they fooled people.

  And the court recognized that some of these statements were in fact defamatory, but they also recognized that "rhetorical hyperbole, vaguely accusing a business of wrongdoing does not rise to the level of defamation per se." And so that is very important because the court pointed out that the allegations of JBT lying and stealing does not actually accuse JBT of unlawful conduct. The court went on to say that at bottom, though, inappropriate, defendant's statements are not of such common notoriety or unmistakably injurious to relieve JBT of its burden to prove it was damaged. So the court finally held that defendants' statements are not defamatory per se, and JBT has not introduced evidence of special damages so the court granted defendant summary judgment on the claim.

  And an important distinction that has to be made, that if the action was not alleged to be defamation per se, but just standard defamation, then the court indicated may have risen to the level of defamatory. But if that's the case, then the injured individual would have to come forward and show some actual damages because going with the defamation per se claim, alleviated the burden of showing actual damages because damages were attributed to the statements themselves.

  So again, if someone makes a statement about the unchastity or unchasteness of a woman, then that woman can bring a claim for defamation per se, and doesn't have to prove any damages at all because the statement is considered so despicable and so injurious to the woman's reputation that damages are presumed. And so that's the important distinction that John Bean Technologies brings with regards to standard defamation and then defamation per se.

  So now, let's return to other elements of defamation. So let's talk about when are facts not facts. To be defamatory, the statement-at-issue must be expressed as a fact, it cannot be a mere opinion. For example, in returning to our Smallville case, it would likely not be actionable if Miss Doe, remember the neighbor of John Q. Public, would've said to the reporter of The Town Crier something to the effect, "You know, I think that John Q. Public is a weirdo. I see him, gawking at little girls all the time. I think he's a pedophile. I hate to say it, but when I see him out, I think he's on the prowl looking for little girls to molest." Now that is an opinion that was expressed. It's not a statement of fact. And "In any defamation case, the question of whether the statements at issue are statements of fact is a legal one reserved for the court. It's informed by factual context of the statements in question," but it is still a legal question for the court.

  A good case that addresses the issue of fact versus opinion is the recent McDougal case. So let's take a look at that. Now, with regards to the McDougal case, people may recognize the name. This comes from a case from McDougal v. Fox News Network. It was a 2020 case, later in September of 2020. And it was decided by the Southern District of New York. And here, we're talking about the former model and actress who brought an action against the television news network, alleging slander per se. So let's take a look at the case here. And this is an opinion where they were granting the motion to dismiss. So in this instance, the plaintiff, Karen McDougal filed her action asserting a single claim of slander per se after she allegedly was disfamed by a segment on a popular program, "The Tucker Carlson Tonight Program, which is produced by defendant Fox News, so she sued Fox News.

  Now, Ms. McDougal alleges that the host of the show, obviously, Tucker Carlson accused her of extorting then-President Donald J. Trump out of approximately $150,000 in exchange for her silence about an alleged affair between her and then-President Trump or when the affair happened, Mr. Trump. Now, Fox News moved to dismiss Ms. McDougal's claim on the grounds that Mr. Carlson's statements were not statements of fact and that she failed adequately to allege actual malice. And the court ultimately entered an order granting the motion to dismiss.

  So let's review the facts a little bit. Plaintiff Karen McDougal, a former model and actress who originally rose to public attention as a model in the Playboy magazine, and her allegations were that she had engaged in a long affair, from 2006 through 2007, with then-President Donald Trump. And specifically law enforcement investigators and the media revealed that in the months leading up to the 2016 election, American Media, Inc., AMI, that's the company behind the National Inquirer that we know about and in particular, the CEO of the National Enquirer, David Pecker, allegedly is close with the then-president and paid Ms. McDougal $150,000 in exchange for the rights to her story about the affair with Mr. Trump. AMI then assigned the rights to the story to a corporate shell entity formed Mr. Cohen, who was Mr. Trump's personal attorney, and exchanged for that the assignment Mr. Cohen paid AMI $125,000.

  Now, shortly before Mr. Cohen, who later came into problems himself, he was being sentenced, he indicated that the Fox News story aired an episode on Tucker Carlson and that while Mr. Carlson did not refer to Ms. McDougal by name during the show, at one point during the debate with guest commentators, Fox News displayed her picture on screen, so it was pretty clear that they were talking about her. And so let's look at what the plaintiff is claiming. The plaintiff claims that Mr. Carlson stated, the gist of the story is that Michael Cohen has told federal prosecutors that he facilitated payments to two women who said they had affairs with Donald Trump.

  Now, in the story, Tucker Carlson indicated that he was representing or accepting that all the facts of the story were true. "They are undisputed, two women approach Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money. Now, that sounds like a classic case of extortion." He went on to state "Trump caves to it and he directs Michael Cohen to pay the ransom." Mr. Carlson also stated, "If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions. Money in question did not come from or go to Donald Trump's campaign and so how could it be campaign contributions?"

  Now, the plaintiff went on to state that at least two statements in this segment were defamatory. One, Mr. Carlson's accusation that Ms. McDougal "approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money," and two, Mr. Carlson's suggestion that Ms. McDougal's actions were "a classic case of extortion," which is a crime, obviously. Now, Mr. Carlson's statements were facts according to Ms. McDougal as indicated by his statement that "Remember the facts of the story. These are undisputed." That's the basis of the lawsuit. And of course, as we've indicated, facts are the prerequisite of a defamation claim, not opinion.

  However, the defendant said that when read in context, Mr. Carlson's statements "cannot reasonably be interpreted as facts" and that the amended complaint fails to allege actual malice. So the court looked at the actual statements made, and the court ultimately decided to grant defendant's motion to dismiss in the case. But let's look closer at why that happened. The court pointed out that Ms. McDougal does not dispute that she is a public figure subject to the actual malice standard, so that becomes very important to the ultimate decision of the court. The court went on to say that the Supreme Court has emphasized that statements, whether presented as fact or opinion may be defamatory only where they state or imply a provably false assertion of fact. It has long been the law that simply invoking a criminal act or accusing a person of a crime does not transform an otherwise non-factual statement into a factual assertion if the accusation in light of the surrounding context is "rhetorical hyperbole" or where the record is "devoid of evidence" that anyone brought or thought a crime was actually committed.

  And based upon that Supreme Court case, the courts here stated "In particular, accusations of "extortion," "blackmail," and related crimes, such as the statements Mr. Carlson made here, are often construed as merely rhetorical hyperbole when they are not accompanied by additional specifics of the actions purportedly constituting the crime." And so the court found that these statements were simply rhetorical hyperbole. And the court pointed out that such accusations of crimes also are unlikely to be defamatory when, as in this case, they were made in the connection with debates on a matter of public or political importance. So that became extremely important, that obviously, Ms. McDougal was a public figure. The court went on to hold that "The context in which the offending statements were made here made it abundantly clear that Mr. Carlson was not accusing Ms. McDougal of actually committing a crime. As a result, his statements are not actionable. While Mr. Carlson used the word "extortion" defendant submits that the use of the word or an accusation of extortion absent more is simply "loose, figurative, or hyperbolic language that does not give rise to a defamation claim."

  And so the court ultimately held that "Mr. Carlson's statements are "a statement on matters of public concern" that deserve the high protection" and therefore, they were not going to be the basis for a defamation claim. And the court ultimately held in light of this precedent in the context of Tucker Carlson's Tonight statements, the court finds that Mr. Carlson's invocation of "extortion" against Ms. McDougal is non-actionable hyperbole intended to frame the debate in the guest commentator's segment that followed Mr. Carlson's soliloquy. And so that is an important case that indicates there's a huge difference between a public figure and a private individual.

  So let's move on now to the need for specificity as to the alleged defamatory statement. In the McDougal case, there was no question with regards to the specificity of the statements. The statements were very specific, but they were held to be non-defamatory because of the fact that she was a public figure and Mr. Carlson was commenting upon a public question, a political question, a question that was of concern to the public.

  So let's talk about the need for specificity as to the alleged defamatory statement. Since at least 1507, we talked about that earlier, an action for defamation has been rooted in the expression of the words that may cause harm to another. Obviously, since the basis of the action is the expression of certain words or statements, the plaintiff must specify the actual word stated. Nebulous or general statements of the offending conduct will not suffice. A good case that discusses this aspect of a defamation case is Orchestrate HR, Inc. versus Blue Cross Blue Shield. So let's take a look at that case in detail.

  Okay. So here we're talking about a case from the District of Kansas, 2021 case decided in April 2nd, 2021, and here the plaintiff, Orchestrate HR, and VIRTUE, Inc., they were bringing in action against Blue Cross Blue Shield of Kansas. And the allegations, in this case, involve the defendant's work with universities to help them bill insurers for medical services performed by the universities' licensed athletic trainers. And the plaintiffs indicate that the contracts with the schools helped them file insurance claims and receive a share of the billing collected. The dispute arose when Blue Cross denied many of the claims submitted by the plaintiff for the universities and began labeling the insurance claims as fraudulent or improper. And plaintiff contends that Blue Cross defamed Vivature to Washburn University, my alma mater.

  And the court found that actually, Texas law governs the case. But as I indicated before, Texas law, like most states, have the same elements for defamation. In particular, we're talking about the fact that the defendant published a statement, two, that the statement was defamatory concerning the plaintiff, and three, while acting with malice if the plaintiff was a public figure, or negligence if the plaintiff was a private individual regarding the truth of the statement, it was defamatory nonetheless.

  They talked about what defamation is and is not. And they pointed out that the defendant, Blue Cross argued that the plaintiff's new defamation claims beyond a particular letter, which was upheld in the prior order, had not been pleaded with requisite detail. And the plaintiff responded that they provided a list of over 50 written communications by Blue Cross that the plaintiff contends were defamatory and that it had listed "the actual defamatory statements made or the defamatory implications, which resulted from the statements." However, the court found that that was an overstatement of what actually was included in the second amended complaint, and the court actually provided examples of these statements and labeled them as simply samples of "potentially defamatory statements." The court pointed out that none of the exact alleged defamatory statements contained in the document are listed or quoted in the complaint. And so the court found that this fails to sufficiently detail the alleged defamation.

  The statements have to be specifically alleged. And the court pointed out that it's not its job to sift through evidently 1500 pages of the exhibits and try and determine whether any of those statements support a defamation claim against the defendant. And the court also pointed out that the plaintiff has just pleaded allegations that at some point in time, Blue Cross made certain vague defamatory statements to unspecified individuals at various institutions, including Washburn University, my alma mater. And so based upon this, the fact that the plaintiff just pointed to 1500 pages of exhibits and said in there we've been defamed, the court concluded that the plaintiff has not adequately pleaded additional claims of defamation and throughout the case.

  So the bottom line importance of that case is to pick your defamatory statements carefully and make sure it's a specific statement that needs to be addressed by the court. Don't just toss out 1500 statements and say, "Your Honor, we've been defamed in here. It's obvious if you look at it." So specificity is very important.

  Let's move on to defamation in the age of the internet because this is important because the internet has changed defamation probably as much as The New York Times v. Sullivan case, and probably as much as the King's Court back in 1507. For example, there's an article on the internet entitled "Are You Being Harassed or Blackmailed Online?" This can be found at How to Deal with Blackmail, Facebook Scam, and Cyberstalking Online, Digital Forensics Corporation.

  Now, this statement or this ad is not a unique advertisement on the internet. Unfortunately, in this age of the internet, with the easy access to mass audiences, it has led to an increase of potential defamation actions. It is unbelievable the amount of statements that are able to be put on the internet, and of those statements, many times there are potential actions for defamation. Now, of course, the fact that the internet is ubiquitous and a defamer can live thousands of miles away from the defamed causes certain issues to be litigated more frequently than in the past. In the past, as in our example earlier in Smallville, we had a neighbor talking to a town reporter that published a paper in that town about the other neighbor. Everything is nice and consolidated. That is not the situation with the internet. The internet is ubiquitous. It covers the world, and a defamer can live thousands of miles away from being the one defamed.

  So this last section of the Quimbee presentation on defamation law will focus on aspects of defamation law in the age of the internet. So first, let's talk about jurisdiction and venue in the age of the internet because jurisdiction and venue, although they have not been changed by the internet per se, they definitely present different hurdles and issues that the courts must grapple with. So obviously before any defamation case can proceed, the court must determine whether the requirements regarding jurisdiction and venue have been satisfied. Two cases that address these issues will now be reviewed. First, the requirements for bringing a case in the proper jurisdiction will be addressed by analyzing the recent case of E'Casanova v. Morrow. I discussed this previously, it's simply a Westlaw case found at 2021 Westlaw 682058 from the District of Nevada. So let's talk about that, and then we'll move on to the case regarding proper venue, and that is the Van Deelan case, but we'll talk about that in a minute. But first, the E'Casanova case. Let's talk about that. And it came, like I said, out of the District of Nevada.

  So in that case, there was pending before the court a motion to dismiss and ultimately, the defendant's motion to dismiss was granted. Now the case arose out of the defendant's alleged online defamation and harassment of the plaintiff, and the plaintiff was an actor, an entertainer living in Nevada. The defendant, however, was a Pennsylvania resident and what we call a social media influencer and a YouTube personality. Now the plaintiff contended that defendant has been using his social media platforms to defame and harass the plaintiff on the internet. And specifically, it alleged that the defendant was calling plaintiff, once again, here we go, a pedophile, and encouraged the plaintiff to kill himself.

  Now, the defendant filed a motion to dismiss and claimed that the court lacked personal jurisdiction over the defendant at the time. Now, the court went through the rules with regards to jurisdiction and indicated that Federal Rules of Civil Procedure 12(b)(2) permits a defendant by way of a motion to assert the defense that a court lacks personal jurisdiction over the defendant. And the court pointed out that when no federal statute applies to the determination of personal jurisdiction, the law of the state, in this instance, Nevada, in which the district court sit applies, and the court pointed out because Nevada's long-arm statute reaches the outer limits of federal constitutional due process, the courts in Nevada need only assess constitutional principles of due process when determining personal jurisdiction. So the court went on to differentiate between specific jurisdiction and general jurisdiction and then addressed each.

  In this case, the plaintiff was alleging that the court has personal jurisdiction over the defendant because the defendant has visited Nevada multiple times, his content is viewed by the audiences in Nevada and other states, and his posts are directed specifically at the plaintiff himself, who is a citizen of Nevada. The defendant countered by arguing that the court lacks personal jurisdiction because defendant neither is a resident of Nevada or has sufficient minimum contacts with the state. I'm going to kind of cut to the chase here. The court pointed out that the plaintiff admitted that the defendant was an individual and a resident of Pennsylvania, and the plaintiff does not allege that any other facts indicating that the defendant could be domiciled in Nevada, and further, there's no evidence that the defendant's visits to Nevada created ties that were continuous or systematic enough to establish general personal jurisdiction. So the court moved on to specific jurisdiction and pointed out that specific jurisdiction refers to "jurisdiction based on the relationship between the defendant's forum contacts and the plaintiff's claim."

  The court went through the three-prong tests that the court will utilize to determine whether specific jurisdiction exists. And the court ultimately concluded that the plaintiff has demonstrated that the defendant committed an intentional act, so that's good. But the court went on to differentiate between simply committing an intentional act and committing an intentional act that subjects you to specific jurisdiction. And the court pointed out that the key to deciding whether specific jurisdiction actually applies is whether "the negative impact that the uttered words, defamatory words, had on the individual's public reputation in that state "connected the defendant's conduct to Nevada, not just to the plaintiff who lived there." And so the proper question the court pointed out is not whether the plaintiff experienced a particular injury or effect, but whether the defendant's conduct connects him to the forum in a meaningful way. And the court ultimately held that the plaintiff has not met his burden to show that the defendant expressly aimed his conduct at Nevada.

  The court pointed out that while the plaintiff alleges that he is a resident of Nevada and that the defendant's conduct defamed and harassed him in Nevada, the singular fact that defendant allegedly committed an intentional tort against a Nevada resident is not enough to establish specific personal jurisdiction. The court went on to point out that Nevada residents' ability to view the defendant's online content, which it could do just like anyone else in the United States, still does not indicate that the defendant expressly aims his conduct at Nevada. The plaintiff does not identify any evidence that defendant specifically targets or solicits Nevada viewers. And in fact, plaintiff alleges that defendant's content reaches audiences "in Nevada and other states." So when we're talking about just general internet statements, they reach all the United States, and so, therefore, isn't going to be specific jurisdiction in every place that a potential defamation plaintiff resides. And the court ultimately held that plaintiff has not established that defendant purposefully directed his conduct toward Nevada, the state at issue, and thus, cannot satisfy a finding of specific personal jurisdiction. So that is the important case with regards to jurisdiction.

  Now, second, we're talking about proper venue. And the case that addresses proper venue is the Van Deelan case. And that is another Westlaw case found at 2021 Westlaw 401201. And this case actually comes out of the District of Alabama and it is very interesting because Alabama basically had no contact or no relationship to the acts of the defendant or the injury to the plaintiff. And the court pointed out that in the incident case, the events giving rise to Van Deelan's are our defendant Gill's alleged authorship of two defamatory articles from his office in Virginia about the plaintiff, a teacher who lives and works in Texas, and Bloomberg's publication of those articles on the internet from Virginia. Okay.

  So the court said that venue is at least proper in Virginia and in Texas, however, "venue is not proper in this district, Alabama, where there are no allegations that a substantial part of the events or omissions giving rise to Van Deelan's claims occurred." And to put a death nail in the argument that venue is proper, the court points out that "Van Deelan has alleged only that the defamatory articles were published on the internet and thus, could have been accessed by anyone subscribing to the publication in this district, that being Alabama or any other district in the United States. Van Deelan has neither alleged nor established that he suffered any economic or reputational harm in this district or that any other conduct occurred in Alabama. To the contrary, and here's the kicker, Van Deelan alleges that he chose this district because the law is more favorable to him in the State of Alabama than it is in Texas, Virginia, or New York."

  So he admits to the court that he was forum shopping, which is never good. And then he adds that Alabama and the district he filed in is "halfway between his home in Spring, Texas and the defendant's location in Virginia and New York, and thus "is more for him for travel." Obviously, admitting to the court that you chose the jurisdiction because of forum shopping and because a place halfway between your locale and the defendant's locale is convenient for travel is not going to win the day, and the court held as much. The court stated "such allegations are insufficient to establish venue in this district. Indeed, even assuming some de minimis reputational harm in this district by virtue of the publication of the articles on the internet, it can hardly be said that a substantial part of the events or omissions giving rise to the claim happened here, and so, therefore, venue is improper in Alabama. That should come to no surprise of anyone.

  Now, returning back to examples of defamation on the web in the age of the internet, one of the best cases for one to review for getting an overall general grasp of defamation in the age of the internet comes out of Kansas. It is the 2006 case of Sunlight Saunas, Inc. versus Sundance Saunas, Inc. And it was tried to a jury by an attorney named, let me see here, Kenneth P. Kula. That name sounds vaguely familiar. Well, I will let you look at that case because we are running out of time, and I will out that that case has numerous reported opinions on it. But if you want to look at the opinion that decided the motion for summary judgment and addresses the internet and defamation, in particular, I direct you to the 427 Fed. Supp. 2nd 1032 opinion, decided April 17th, 2006.

  It goes through all the facts of the case and how the defamation occurred over the internet, and it talks about certain qualified immunities, and also the elements that need to be proven. And it is a great case to get an overall flavor of defamation in the age of the internet, albeit in the early ages of the internet, being that it was almost, and I cannot believe this, 15 years ago.

  So, this concludes our hour-long overview of defamation law from Quimbee. I hope it has provided you with the background you'll need to perform your role as an attorney and protecting your client's reputation. I hope it also provided you with examples of how defamation is rearing its ugly head more and more during this age of the internet. And finally, I implore you to go look back at the reported opinions from the Sunlight Saunas, Inc. versus Sundance Sauna cases out of the District of Kansas. Thank you very much for your time today. I appreciate all your attention and I hope you enjoyed this presentation.


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1h 1m 38s

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