Libel

14. Where can you be sued?

The question of whether a journalist who lives and works in one state can be sued for libel in another state has existed for as long as publications have crossed the borders separating states.  The Internet, however, has complicated the issue and given rise to numerous questions regarding interstate and even international libel suits.  The threshold issue is whether a court in one state has “personal jurisdiction” over a citizen of another state. That is, does a court in, say, Virginia have the power to compel a North Carolina citizen to show up in the Virginia court and defend himself or herself against a libel suit. The answer to that question is, it depends.  It depends on whether the defendant has certain “minimum contacts” with the state of Virginia such that allowing the lawsuit to proceed does not offend “‘traditional notions of fair play and substantial justice.’”^[195]  What constitutes sufficient “minimum contacts,” though, is a complicated question.

In 1984, the U.S. Supreme Court unanimously held that a California court did have personal jurisdiction over a National Enquirer reporter and editor, both of whom lived in Florida, in a libel suit brought by actress Shirley Jones, a California resident.^[196]  The Supreme Court wrote:

The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California.  The article was drawn from California sources, and the brunt of the harm, in terms both of respondent’s emotional distress and the injury to her professional reputation, was suffered in California.  In sum, California is the focal point both of the story and of the harm suffered.  Jurisdiction over petitioners is therefore proper in California based on the “effects” of their Florida conduct in California.^[197]

The same day, the Supreme Court decided that a New Hampshire court had jurisdiction over Hustler magazine, an Ohio corporation, in a libel suit brought by a resident of New York.^[198]  Kathy Keeton sued in New Hampshire, which at the time had a six-year statute of limitations on libel suits, because the statute of limitations had run out in her home state.  The Court held that the 10,000 to 15,000 copies of Hustler that circulated in New Hampshire monthly, out of a total circulation of about 1 million, constituted sufficient “minimum contacts” to give the New Hampshire court jurisdiction.  Hustler, the Court said, “produces a national publication aimed at a nationwide audience.  There is no unfairness in calling it to answer for the contents of that publication wherever a substantial number of copies are regularly sold and distributed.”^[199]

When Internet libel and other types of cases began arising, courts quickly recognized that broad application of those precedents could mean that a person posting information on the Internet might be haled into court in any of the 50 states.  Consequently, courts began fashioning tests to determine when Internet-based contacts were sufficient to trigger personal jurisdiction.  The Fourth Circuit, of which North Carolina is a part, has developed such a test, which provides that personal jurisdiction can be asserted over a nonresident if “the person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts.”^[200]  The court, however, has made it clear that simply posting material on the Internet, accessible to anyone anywhere in the world, does not meet that test.

For example, in a libel case brought by the warden of a Virginia prison against two Connecticut newspapers, the Fourth Circuit ruled that merely posting stories on the newspapers’ websites was not sufficient contact with the State of Virginia to give a Virginia court jurisdiction over the out-of-state newspapers.^[201] The papers had published stories about Connecticut’s decision to contract with Virginia to house some of its prisoners because of overcrowding in Connecticut correctional facilities.  The warden claimed the stories defamed him, and he filed suit in a Virginia court.  For Virginia to have personal jurisdiction, the court said, “[t]he newspapers must, through the Internet postings, manifest an intent to target and focus on Virginia readers.”  The websites were “not designed to attract or serve a Virginia audience,” the court concluded and, therefore, did not constitute the “minimum contacts” required.^[202]

In 2008 the N.C. Court of Appeals found the Fourth Circuit’s “reasoning persuasive”^[203] and adopted the same approach in a case that resulted from a Georgia man posting numerous statements on Internet bulletin boards calling a North Carolina resident, among other things, “a crook,” “a cheat and liar,” “a scumbag,” and “the equivalent of a molester of boys” and accusing him of illegal conduct.^[204] The court said the relevant question was, “Did defendant, through his internet postings, manifest an intent to target and focus on North Carolina readers?” The answer was no. “The fact that some unspecified number of participants in the discussion groups might be North Carolinians does not, however, establish that defendant intended to focus on or target those North Carolina participants.” ^[205] While plaintiff had urged the court to follow the Shirley Jones case, discussed above, and rule that the effect the postings had on the North Carolina resident were sufficient to establish jurisdiction, the court refused to do so, saying that such an approach “would confer jurisdiction in each state in which a plaintiff was affected by internet postings” and eliminate the defense of lack of personal jurisdiction in all Internet defamation cases.^[206]

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