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Posted by stern130 at 8:21 PM · 5552

February 12, 2005

Griffis v Luban

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Katherine Griffis, Respondent, vs. Marianne Luban, petitioner, Appellant.

C3-01-296

SUPREME COURT OF MINNESOTA

646 N.W.2d 527; 2002 Minn. LEXIS 461


July 11, 2002, Filed

SUBSEQUENT HISTORY: Rehearing denied by Griffis v. Luban, 2002 Minn. LEXIS 606 (Minn., Aug. 13, 2002)US Supreme Court certiorari denied by Griffis v. Luban, 2003 U.S. LEXIS 1987 (U.S., Mar. 10, 2003)

PRIOR HISTORY: [**1] Court of Appeals. Office of Appellate Courts. Griffis v. Luban, 633 N.W.2d 548, 2001 Minn. App. LEXIS 1005 (2001)

DISPOSITION: Reversed and judgments vacated.

SYLLABUS: A nonresident defendant is not subject to a foreign court's jurisdiction under the effects test from Calder v. Jones, 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984), absent a showing that: (1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the harm caused by that tort in the forum such that the forum state was the focal point of the plaintiff's injury; and (3) the defendant expressly aimed the tortious conduct at the forum such that the forum state was the focal point of the tortious activity.

JUDGES: Blatz, C.J. GILBERT, J., took no part in the consideration or decision of this case.

OPINIONBY: BLATZ

OPINION: [*529]

Heard, considered, and decided by the court en banc.

BLATZ, Chief Justice

Respondent Katherine Griffis brought suit against appellant Marianne Luban in Jefferson County, Alabama, alleging defamation and invasion of privacy arising out of statements made by Luban on the internet. Luban did not appear in the Alabama action, and the Alabama district court entered a default judgment for $ 25,000 in damages [**2] and issued an injunction prohibiting Luban from making certain statements in the future. Griffis filed the Alabama judgment in Ramsey County District Court, and Luban brought a motion to vacate, challenging the jurisdiction of the Alabama court. The Ramsey County District [*530] Court upheld personal jurisdiction of the Alabama court over Luban, and the court of appeals affirmed. We reverse.

Respondent Katherine Griffis, an Alabama resident, has taught noncredit courses in ancient Egyptian history and culture at the University of Alabama, Birmingham. Griffis also works as a self-employed consultant. Appellant Marianne Luban, a Minnesota resident, maintains a nonprofessional interest in the history and culture of ancient Egypt. Both Luban and Griffis have participated in an internet newsgroup on archeology, the sci.archaeology newsgroup, since at least 1996. A newsgroup is a forum for internet users that addresses a specific topic and allows participants to exchange information and engage in discussions or debate by "posting" messages on the website. The sci.archaeology newsgroup is public and so messages posted there can be accessed anywhere by any person with internet access. [**3]

During the latter part of 1996 a disagreement arose between Luban and Griffis relating to the subject of Egypt and Egyptology. In December 1996 Luban posted a message challenging Griffis's credentials as an Egyptologist, and accusing Griffis of obtaining her degree from a "box of Cracker Jacks." Griffis states that she responded by citing her credentials in an electronic message sent directly to Luban. The disagreement continued into 1997, with both Luban and Griffis continuing to post messages relating to their disagreement on the sci.archaeology newsgroup. In May 1997, Griffis's attorney sent a letter to Luban demanding that Luban refrain from attacking Griffis's character and professional reputation. The letter threatened legal action if Luban did not retract the prior statements and refrain from future attacks. Although Griffis asserts that Luban continued posting defamatory messages after receiving this letter, the record before us does not include any statements made by Luban, whether on the sci.archaeology newsgroup or elsewhere, after March, 1997.

In September 1997, Griffis brought a defamation action against Luban in Alabama state court. Griffis's complaint [**4] alleged that Luban posted statements on the newsgroup asserting that Griffis obtained membership in the International Association of Egyptologists and inclusion on other lists of Egyptologists by misrepresenting her qualifications, that Griffis was a liar, was not affiliated with the University of Alabama, did not have a juris doctor degree, and that Griffis's consulting business was not legitimate. Because Luban was advised by her attorney that the Alabama state court did not have personal jurisdiction over her, she did not answer the complaint or make any appearance in the Alabama action. On December 17, 1997, the Alabama court entered a default judgment against Luban. The court assessed damages in the amount of $ 25,000 and also issued an injunction specifically enjoining Luban from publishing certain statements in the future. n1

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n1 The injunction prohibited Luban from publishing in any form--including on the internet, world wide web and e-mail--statements asserting or implying that Griffis is a liar, a phony, a con-artist or scam artist, that she has falsified her credentials as an Egyptologist, that she is not affiliated with the University of Alabama, that she does not have a juris doctor degree, and that she is not engaged in a legitimate consulting business.

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On May 5, 1998, Griffis filed the Alabama judgment in Ramsey County District Court in order to enforce its terms against Luban. Luban moved to vacate the judgment on the basis that the Alabama court lacked personal jurisdiction over her. A referee initially granted Luban's motion, [*531] but on reconsideration concluded that the Alabama court had personal jurisdiction over Luban and ordered entry of a Minnesota court judgment against Luban. On appeal, the court of appeals vacated the referee's order because it had not been confirmed or countersigned by a district court judge. In the interim, Luban petitioned for bankruptcy, and on March 15, 2000, the bankruptcy court discharged the $ 25,000 judgment from the Alabama court.

In March 2000, Luban renewed her motion in district court to vacate the Alabama judgment, and Griffis filed a cross-motion to enforce the Alabama injunction. The court found that the Alabama district court had personal jurisdiction over Luban and therefore the judgment must be given full faith and credit. Judgment was entered on December 21, 2000. On Luban's appeal, the court of appeals affirmed, ruling that the district court did not err in its determination that the [**6] Alabama court properly exercised personal jurisdiction over Luban. Griffis v. Luban, 633 N.W.2d 548, 553 (Minn. App. 2001). The court of appeals concluded that Luban was subject to the Alabama court's jurisdiction because she made potentially defamatory statements that were being read in Alabama and had knowledge of the effect of those statements in Alabama. Id. Luban sought and was granted review in this court.

The question presented is whether the Ramsey County District Court correctly determined that the Alabama district court had personal jurisdiction over Luban so that the Alabama judgment is entitled to full faith and credit in the Minnesota courts. This court recognizes the right of a defendant to contest an action brought on the basis of a foreign court's judgment by demonstrating that the foreign court rendered the judgment in the absence of personal jurisdiction over the defendant. David M. Rice, Inc. v. Intrex, Inc., 257 N.W.2d 370, 372 (Minn. 1977). Such judgments are not entitled to full faith and credit in Minnesota. Uniform Enforcement of Foreign Judgments Acts, Minn. Stat. § 548.27 (2000); Hutson v. Christensen, 295 Minn. 112, 117, 203 N.W.2d 535, 538 (1972). [**7] Minnesota courts will uphold a foreign court's exercise of personal jurisdiction over a nonresident defendant when two requirements are met: (1) compliance with the foreign state's law providing jurisdiction, and (2) the exercise of jurisdiction under circumstances that do not offend the Due Process Clause of the federal constitution. Intrex, 257 N.W.2d at 372. Whether personal jurisdiction exists is a question of law and therefore our review is de novo. See V.H. v. Estate of Birnbaum, 543 N.W.2d 649, 653 (Minn. 1996); see also Matson v. Matson, 310 N.W.2d 502, 506 (Minn. 1981) (applying de novo review to issue of whether foreign judgment entitled to full faith and credit).

For the first requirement, Minnesota courts apply the law of the foreign state, as construed by that state's courts. See David M. Rice, Inc, 257 N.W.2d at 372. Alabama law extends personal jurisdiction over nonresident defendants to the full extent permitted by due process. Ala. R. Civ. P. 4.2(a)(1)(B); DeSotacho, Inc. v. Valnit Industries, Inc., 350 So. 2d 447, 449-50 (Ala. 1977). Because Alabama provides jurisdiction as broad [**8] as due process will allow, the first requirement is subsumed by the second, and we need only determine whether Alabama's exercise of personal jurisdiction over Luban was consistent with due process.

The Due Process Clause of the Fourteenth Amendment limits the power of a state court to exercise personal jurisdiction over a nonresident defendant to circumstances where the defendant has "minimum contacts" with the state so that "maintenance of the suit does not offend [*532] 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 319, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)). Where the defendant had "continuous and systematic" contacts with the forum state, the court can exercise "general" jurisdiction over a nonresident defendant for all purposes, even for a claim that is not related to the defendant's contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984) (quoting Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 96 L. Ed. 485, 72 S. Ct. 413, 47 Ohio Op. 216, 63 Ohio Law Abs. 146 (1952)). [**9] Griffis does not contend that the Alabama courts could exercise general jurisdiction over Luban. Where the nonresident defendant's contacts with the forum state are not sufficient for general jurisdiction, the defendant may nonetheless be subject to "specific" jurisdiction--that is, jurisdiction over a claim that allegedly arose out of the defendant's contacts with the forum. Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 411 (Minn. 1992). Griffis contends that Luban had sufficient contacts with Alabama, out of which her claims arose, to support the Alabama court's exercise of specific jurisdiction.

In judging minimum contacts for purposes of assessing the validity of specific jurisdiction, a court focuses on the "relationship among the defendant, the forum, and the litigation." Helicopteros Nacionales de Columbia, S.A., 466 U.S. at 414-16 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977)); West American Ins. Co. v. Westin, Inc., 337 N.W.2d 676, 679 (Minn. 1983). For the minimum contacts requirement to be satisfied, the defendant must have "purposefully availed" herself [**10] of the privilege of conducting activities within the jurisdiction. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998) (quoting and modifying Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958)). The defendant's conduct and connections with the forum state must be such that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). The Supreme Court has explained that specific jurisdiction may be found where the nonresident defendant has " 'purposefully directed' his activities at residents of the forum and the litigation results from alleged injuries that 'arise out of or relate to' those activities." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 79 L. Ed. 2d 790, 104 S. Ct. 1473 (1984), and Helicopteros Nacionales de Columbia, S.A., 466 U.S. at 414).

In asserting that the Alabama district court had personal jurisdiction [**11] over Luban, Griffis relies in particular, as did the courts below, on Calder v. Jones, 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984). In Calder the Supreme Court approved a test that had been employed by the California courts in that case for determining personal jurisdiction over nonresident defendants who allegedly committed an intentional tort outside the forum. 465 U.S. at 787 & n.6. Rather than focusing only on the defendant's conduct within or contacts with the forum, the so-called "effects test" approved in Calder allowed long-arm jurisdiction to be based on the effects within the forum of tortious conduct outside the forum. Id.

Calder involved an allegedly libelous National Enquirer article written and edited by the defendants in Florida, but concerning the California activities of a California [*533] resident. 465 U.S. at 784-85. Although the Enquirer was distributed nationally, it had its largest circulation in California. 465 U.S. at 784-85. Plaintiff was an entertainer whose profession, the Court pointed out, was centered in California. 465 U.S. at 788. She brought suit in California [**12] against the Florida-based publication, its distributing company, and the reporter and editor of the article. 465 U.S. at 785-86. The reporter and editor moved to quash service of process for lack of personal jurisdiction. 465 U.S. at 785-85. Although the investigative contacts of one defendant with California, including a visit and several phone calls, were alleged as a basis for jurisdiction, the Court found it unnecessary to consider those direct contacts with the forum. 465 U.S. at 786-87 & n.6. Instead, the Court held that California had personal jurisdiction over the reporter and editor because their Florida conduct was "expressly aimed" at California, knowing that the harmful effects would be felt primarily there. 465 U.S. at 789. The Court emphasized that the alleged tort was not "mere untargeted negligence." Id. Under these circumstances, the Court found that defendants "must 'reasonably anticipate being haled into court' " in California for their out-of-state actions. 465 U.S. at 790 (quoting World-Wide Volkswagen Corp., 444 U.S. at 297).

Courts have come to varying conclusions about how broadly [**13] the "effects test" approved in Calder can be applied to find jurisdiction. The Seventh Circuit Court of Appeals has construed Calder very broadly, concluding that "the state in which the victim of a tort suffers the injury may entertain a suit against the accused tortfeasor." Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir. 1997). However, the other federal courts of appeals that have considered the issue have rejected this expansive view that Calder supports specific jurisdiction in a forum state merely because the harmful effects of an intentional tort committed in another jurisdiction are primarily felt in the forum. E.g., Imo Indus., 155 F.3d at 265. Thus, courts have consistently refused to find jurisdiction based on Calder merely because the plaintiff was located in the forum state and therefore felt the effects of the alleged intentional tortious conduct there. E.g., id.; ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625-26 (4th Cir. 1997); Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1080 (10th Cir. 1995); Southmark Corp. v. Life Investors Inc., 851 F.2d 763, 773 (5th Cir. 1988). [**14] Instead, the courts have construed Calder as requiring more than mere effects in the forum state. For example, the Ninth Circuit reasoned that " 'something more' " than mere effects is needed and found that something more in the " 'express aiming' " language of Calder. Bancroft & Masters v. Augusta Nat'l, Inc. 223 F.3d 1082, 1087 (9th Cir. 2000) (quoting Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998); Calder, 465 U.S. at 789). But the court took a broad view of express aiming by concluding that the requirement is satisfied simply by "wrongful conduct [outside the forum] individually targeting a known forum resident." Id.

The Eighth Circuit adopted a narrower interpretation of Calder, stating that it was more than "mere effects" that supported the Supreme Court's holding. Hicklin Eng'g, Inc. v. Aidco, Inc., 959 F.2d 738, 739 (8th Cir. 1992). The court found that the Iowa court's jurisdiction did not extend over a Michigan company that sent allegedly defamatory letters to customers of the Iowa-based plaintiff company. Id. The customers to whom the letters were sent were [**15] all located outside of Iowa. Id. The [*534] court stated that while the defendant's statements to the non-Iowa customers were intended to promote the defendant's product to the detriment of the plaintiff's and therefore might have an adverse effect on the Iowa plaintiff, this effect alone was not sufficient to establish jurisdiction. Id.

Within the spectrum of differing circuit court interpretations of Calder, we believe the most cogent analysis of the Calder effects test is that of the Third Circuit in Imo Industries. In Imo Industries, the circuit court expressed concern over the possible breadth of Calder, asking whether under Calder a court can automatically infer that an out-of-state defendant can anticipate being haled into the forum from the fact that the defendant knew that plaintiff resided in the forum. 155 F.3d at 262-63. After examining how a number of other courts construed Calder, the Third Circuit concluded that the Calder effects test is not satisfied by the "mere allegation that the plaintiff feels the effect of the defendant's conduct in the forum because the plaintiff is located there." 155 F.3d at 263. [**16] Instead, the court stated that Calder's holding "cannot be severed from its facts." 155 F.3d at 261. The court explained that in Calder the Supreme Court relied on three principal findings in reaching its conclusion that the California court properly exercised jurisdiction over the nonresident defendants, and the circuit court incorporated those findings into a three-prong analysis for application of the Calder effects test. 155 F.3d at 261. The test requires the plaintiff to show that: (1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the harm caused by that tort in the forum such that the forum state was the focal point of the plaintiff's injury; and (3) the defendant expressly aimed the tortious conduct at the forum such that the forum state was the focal point of the tortious activity. Id. at 265-66. Significantly, the court emphasized that to satisfy the third prong, the plaintiff must show that "the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed [**17] its tortious conduct at the forum." Id. at 266 (emphasis added).

We, too, are cautious about applying Calder too broadly. Although the Supreme Court has engaged in little further discussion of Calder, in one post-Calder decision the Court did make it clear that foreseeability of effects in the forum is not itself enough to justify long-arm jurisdiction. The Court explained:

The constitutional touchstone remains whether the defendant purposefully established "minimum contacts" in the forum State. International Shoe Co. v. Washington, [326 U.S.] at 316. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a "sufficient benchmark" for exercising personal jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 295. Instead, "the foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court [**18] there." Id., at 297.

Burger King Corp., 471 U.S. at 474 (footnote omitted). If foreseeability of injury in the forum is not enough, it follows that something more than defendant's knowledge that the plaintiff is a resident of the forum and will feel the [*535] effects of the tortious conduct there must be necessary to satisfy the effects test. We conclude that something more than mere effects in the forum state is required, and agree with the Third Circuit that the Supreme Court did not "carve out a special intentional torts exception to the traditional specific jurisdiction analysis, so that a plaintiff could always sue in his or her home state." Imo Indus., 155 F.3d at 265. Broad applications of the effects test, such as those of the Seventh and Ninth Circuits, cast too wide a net and incorrectly disregard the factual underpinnings of the Court's holding in Calder. We adopt the three-prong analysis articulated by the Third Circuit in Imo Industries, as it properly synthesizes the bases of the Court's decision in Calder without effecting an overly broad application.

The critical question in this case turns on the third prong, [**19] whether the defendant expressly aimed the allegedly tortious conduct at the forum such that the forum was the focal point of the tortious activity. n2 As noted above, to satisfy the third prong, the plaintiff must show that "the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum." Imo Indus., 155 F.3d at 266.

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n2 Because all three prongs must be satisfied for jurisdiction to attach, we need address the other two prongs only if this requirement is met.

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Griffis argues that Luban directed the defamation at the Alabama forum because she targeted her messages at Griffis, whom she knew to be an Alabama resident, and because Luban knew that messages posted on the sci.archaeology newsgroup could be read anywhere in the world and in fact were read by Griffis in Alabama. Griffis further contends that Luban's defamatory statements [**20] had "deleterious effects" on Griffis's consulting business and her professional reputation in Alabama. The district court agreed with Griffis, stating that Luban "never denied that she knew Plaintiff was located in Alabama, and that her allegedly defamatory messages would have an 'effect' on Plaintiff's professional career in Alabama."

While the record supports the conclusion that Luban's statements were intentionally directed at Griffis, whom she knew to be an Alabama resident, we conclude that the evidence does not demonstrate that Luban's statements were "expressly aimed" at the state of Alabama. n3 The parties agree that Luban published the allegedly defamatory statements on an internet newsgroup accessible to the public, but nothing in the record indicates that the statements were targeted at the state of Alabama or at an Alabama audience beyond Griffis herself. The newsgroup on which Luban posted her statements was [*536] organized around the subjects of archeology and Egyptology, not Alabama or the University of Alabama academic community. According to Griffis, Luban's messages were widely read by her colleagues--the other amateur Egyptologists who participated in the sci.archaeology [**21] newsgroup. But Griffis has not presented evidence that any other person in Alabama read the statements. Nor has she asserted that Alabama has a unique relationship with the field of Egyptology, like the close relationship between the plaintiff's profession and the forum state that the Supreme Court found relevant in Calder. Therefore, even if we assume Luban's statements were widely read by followers of the sci.archaeology newsgroup, the readers most likely would be spread all around the country--maybe even around the world--and not necessarily in the Alabama forum. The fact that messages posted to the newsgroup could have been read in Alabama, just as they could have been read anywhere in the world, cannot suffice to establish Alabama as the focal point of the defendant's conduct.

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n3 Luban concedes that she knew Griffis lived in Alabama. But this fact alone is insufficient to conclude that Luban expressly aimed her allegedly tortious conduct at the Alabama forum. We look to the record for other evidence that the Alabama forum was the focal point of the defamatory statements. The record contains only two messages posted by Luban on the sci.archaeology newsgroup that identify the Alabama forum in any way. In one, Luban stated Griffis was "from the great state of Alabama." In another, in response to a message by Griffis signed University of Alabama at Birmingham, Special Studies, Luban asked: "What are special studies and what have you to do with them." In response, Griffis posted, "Now for the record, I am an instructor with the University of Alabama at Birmingham, Department of Special Studies, and have been for over 17 years." Luban also acknowledges that she made one phone call to the University of Alabama, in which she asked a receptionist whether Griffis was employed there.

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To support her assertion that Luban's statements affected her professional integrity in Alabama, Griffis relies on the message posted by a dean at the University of Alabama. But that message simply verified that Griffis had taught noncredit classes related to ancient Egypt at the University of Alabama's Department of Special Studies. The statement did not indicate an awareness of Luban's statements, nor did it indicate that Griffis's integrity or reputation had been impugned at the University. Significantly, the dean posted the message to another newsgroup because she did not have access to sci.archaeology newsgroup on which Luban made her postings. Griffis later copied the Dean's message onto the sci.archaeology newsgroup. Thus nothing in the factual record before us indicates that Luban's messages were read by any other person in Alabama, or by anyone in the academic community at the University of Alabama. Griffis also relies on a letter her attorney wrote to Luban threatening litigation to establish that Luban knew her postings would harm Griffis's consulting business in Alabama. But the letter states only that Luban's statements were "threatening" Griffis's business and [**23] did not specify any details about the business. Nor does anything in the record establish that Griffis's consulting business was focused in Alabama, beyond the fact that Griffis herself was located there. n4 Unlike the facts in Calder, where the defamatory article was focused on California activities of a California plaintiff whose professional industry was centralized in California and was carried by a national newspaper with its highest circulation in California, Griffis did not "expressly aim" her statements at the state of Alabama such that Alabama was the focal point of the tortious activity.

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n4 In fact, a copy of the website of the consulting business in the district court record identifies Griffis Consulting as "a U.S.-based consulting firm * * * involved in both domestic and international services to business, government, and other organizations." There is no mention of Alabama on the website, other than an ad from the hosting site.

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In sum, we conclude that the record does not demonstrate that Luban [**24] expressly aimed her allegedly tortious conduct at the Alabama forum so as to satisfy the third prong of the Imo Industries analysis. The mere fact that Luban knew that Griffis resided and worked in Alabama is not sufficient to extend personal jurisdiction over Luban in Alabama, because that knowledge does not demonstrate targeting of Alabama as the focal point of the allegedly defamatory statements. As a result, even if Luban knew or should have known that defamatory statements about Griffis [*537] would affect her in her home state of Alabama, that alone is not enough to demonstrate that Alabama was the focal point of Luban's tortious conduct. Failing this, Griffis cannot rely on Calder to confer personal jurisdiction based on Luban's allegedly intentional tortious conduct. Because Griffis does not claim any other basis on which the Alabama court could properly extend personal jurisdiction over Luban, the judgment of the Alabama court is not entitled to full faith and credit in Minnesota. The decisions of the courts below enforcing the Alabama judgment are therefore reversed, and the Alabama judgment filed in Ramsey County District Court on May 5, 1998, under the Uniform Enforcement [**25] of Foreign Judgments Acts, Minn. Stat. § 548.27, and the Ramsey County District Court judgment entered on December 21, 2000, based on the Alabama judgment, are vacated.

Reversed and judgments vacated.

GILBERT, J., took no part in the consideration or decision of this case.


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Posted by stern130 at 6:40 PM · 5552

Young v New Haven Advocate

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STANLEY K. YOUNG, Plaintiff-Appellee, v. NEW HAVEN ADVOCATE; GAIL THOMPSON; CAMILLE JACKSON; HARTFORD COURANT; BRIAN TOOLAN; AMY PAGNOZZI, Defendants-Appellants, and MICHAEL LAWLOR; CAROLYN NAH; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; CONNECTICUT POST; RICK SAWYERS; KEN DIXON, Defendants. ADVANCE PUBLICATIONS, INCORPORATED; AMERICAN SOCIETY OF NEWSPAPER EDITORS; ASSOCIATED PRESS; ASSOCIATION OF ALTERNATIVE NEWSWEEKLIES; BELO CORPORATION; BLOOMBERG, L.P.; CENTER FOR DEMOCRACY & TECHNOLOGY; DAILY NEWS, L.P.; DOW JONES AND COMPANY, INCORPORATED; EL DIA, INCORPORATED; THE E. W. SCRIPPS COMPANY; THE HEARST CORPORATION; INVESTIGATIVE REPORTERS AND EDITORS, INCORPORATED; MAGAZINE PUBLISHERS OF AMERICA; THE MCCLATCHY COMPANY; NATIONAL ASSOCIATION OF BROADCASTERS; NEWSLETTER & ELECTRONIC PUBLISHERS ASSOCIATION; NEWSPAPER ASSOCIATION OF AMERICA; THE NEW YORK TIMES; ONLINE NEWS ASSOCIATION; THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; SOCIETY OF PROFESSIONAL JOURNALISTS; VILLAGE VOICE MEDIA, INCORPORATED; THE WASHINGTON POST COMPANY; ZIFF DAVIS MEDIA, INCORPORATED, Amici Supporting Appellants.

No. 01-2340

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

315 F.3d 256; 2002 U.S. App. LEXIS 25535; 31 Media L. Rep. 1695


June 3, 2002, Argued
December 13, 2002, Decided

SUBSEQUENT HISTORY: [**1] As Amended January 6, 2003. US Supreme Court certiorari denied by Young v. New Haven Advocate, 2003 U.S. LEXIS 3743 (U.S., May 19, 2003)


PRIOR HISTORY: Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. Glen M. Williams, Senior District Judge. (CA-00-86). Young v. New Haven Advocate, 184 F. Supp. 2d 498, 2001 U.S. Dist. LEXIS 23492 (W.D. Va., 2001)


DISPOSITION: Reversed.

COUNSEL: ARGUED: Robert Douglass Lystad, BAKER & HOSTETLER, L.L.P., Washington, D.C., for Appellants.

Robert Stuart Collins, FLEMING & COLLINS, P.C., Norton, Virginia, for Appellee.

ON BRIEF: Bruce W. Sanford, Bruce D. Brown, BAKER & HOSTETLER, L.L.P., Washington, D.C.; Wade W. Massie, PENN, STUART & ESKRIDGE, Abington, Virginia; Stephanie S. Abrutyn, TRIBUNE COMPANY, New York, New York, for Appellants.

Robert M. O'Neil, THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia; George Rutherglen, UNIVERSITY OF VIRGINIA LAW SCHOOL, Charlottesville, Virginia, for Amici Curiae.

JUDGES: Before MICHAEL and GREGORY, Circuit Judges, and Bobby R. BALDOCK, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation. Judge Michael wrote the opinion, in which Judge Gregory and Senior Judge Baldock joined.

OPINIONBY: MICHAEL

OPINION:

[*258] MICHAEL, Circuit Judge:

The question in this appeal is whether two Connecticut newspapers and certain of their staff (sometimes, the [**2] "newspaper defendants") subjected themselves to personal jurisdiction in Virginia by posting on the Internet news articles that, in the context of discussing the State of Connecticut's policy of housing its prisoners in Virginia institutions, allegedly defamed the warden of a Virginia prison. Our recent decision in ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002), supplies the standard for determining a court's authority to exercise personal jurisdiction over an out-of-state person who places information on the Internet. Applying that standard, we hold that a court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants because they did [*259] not manifest an intent to aim their websites or the posted articles at a Virginia audience. Accordingly, we reverse the district court's order denying the defendants' motion to dismiss for lack of personal jurisdiction.

I.

Sometime in the late 1990s the State of Connecticut was faced with substantial overcrowding in its maximum security prisons. To alleviate the problem, Connecticut contracted with the Commonwealth of Virginia to house Connecticut [**3] prisoners in Virginia's correctional facilities. Beginning in late 1999 Connecticut transferred about 500 prisoners, mostly African-American and Hispanic, to the Wallens Ridge State Prison, a "supermax" facility in Big Stone Gap, Virginia. The plaintiff, Stanley Young, is the warden at Wallens Ridge. Connecticut's arrangement to incarcerate a sizeable number of its offenders in Virginia prisons provoked considerable public debate in Connecticut. Several Connecticut legislators openly criticized the policy, and there were demonstrations against it at the state capitol in Hartford.

Connecticut newspapers, including defendants the New Haven Advocate (the Advocate) and the Hartford Courant (the Courant), began reporting on the controversy. On March 30, 2000, the Advocate published a news article, written by one of its reporters, defendant Camille Jackson, about the transfer of Connecticut inmates to Wallens Ridge. The article discussed the allegedly harsh conditions at the Virginia prison and pointed out that the long trip to southwestern Virginia made visits by prisoners' families difficult or impossible. In the middle of her lengthy article, Jackson mentioned a class action that inmates [**4] transferred from Connecticut had filed against Warden Young and the Connecticut Commissioner of Corrections. The inmates alleged a lack of proper hygiene and medical care and the denial of religious privileges at Wallens Ridge. Finally, a paragraph at the end of the article reported that a Connecticut state senator had expressed concern about the presence of Confederate Civil War memorabilia in Warden Young's office. At about the same time the Courant published three columns, written by defendant-reporter Amy Pagnozzi, questioning the practice of relocating Connecticut inmates to Virginia prisons. The columns reported on letters written home by inmates who alleged cruelty by prison guards. In one column Pagnozzi called Wallens Ridge a "cut-rate gulag." Warden Young was not mentioned in any of the Pagnozzi columns.

On May 12, 2000, Warden Young sued the two newspapers, their editors (Gail Thompson and Brian Toolan), and the two reporters for libel in a diversity action filed in the Western District of Virginia. He claimed that the newspapers' articles imply that he "is a racist who advocates racism" and that he "encourages abuse of inmates by the guards" at Wallens Ridge. Young alleged [**5] that the newspapers circulated the allegedly defamatory articles throughout the world by posting them on their Internet websites.

The newspaper defendants filed motions to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(2) on the ground that the district court lacked personal jurisdiction over them. In support of the motions the editor and reporter from each newspaper provided declarations establishing the following undisputed facts. The Advocate is a free newspaper published once a week in New Haven, Connecticut. It is distributed in New Haven and the surrounding area, and some of its content is published on the Internet. The Advocate has a small number of subscribers, [*260] and none of them are in Virginia. The Courant is published daily in Hartford, Connecticut. The newspaper is distributed in and around Hartford, and some of its content is published on the Internet. When the articles in question were published, the Courant had eight mail subscribers in Virginia. Neither newspaper solicits subscriptions from Virginia residents. No one from either newspaper, not even the reporters, traveled to Virginia to work on the articles about Connecticut's prisoner transfer policy. [**6] The two reporters, Jackson of the Advocate and Pagnozzi of the Courant, made a few telephone calls into Virginia to gather some information for the articles. Both interviewed by telephone a spokesman for the Virginia Department of Corrections. All other interviews were done with people located in Connecticut. The two reporters wrote their articles in Connecticut. The individual defendants (the reporters and editors) do not have any traditional contacts with the Commonwealth of Virginia. They do not live in Virginia, solicit any business there, or have any assets or business relationships there. The newspapers do not have offices or employees in Virginia, and they do not regularly solicit or do business in Virginia. Finally, the newspapers do not derive any substantial revenue from goods used or services rendered in Virginia.

In responding to the declarations of the editors and reporters, Warden Young pointed out that the newspapers posted the allegedly defamatory articles on Internet websites that were accessible to Virginia residents. In addition, Young provided copies of assorted printouts from the newspapers' websites. For the Advocate, Young submitted eleven pages from newhavenadvocate. [**7] com and newmassmedia.com for January 26, 2001. The two pages from newhavenadvocate.com are the Advocate's homepage, which includes links to articles about the "Best of New Haven" and New Haven's park police. The nine pages from newmassmedia.com, a website maintained by the publishers of the Advocate, consist of classified advertising from that week's newspapers and instructions on how to submit a classified ad. The listings include advertisements for real estate rentals in New Haven and Guilford, Connecticut, for roommates wanted and tattoo services offered in Hamden, Connecticut, and for a bassist needed by a band in West Haven, Connecticut. For the Courant, Young provided nine pages from hartfordcourant.com and ctnow.com for January 26, 2001. The hartfordcourant.com homepage characterizes the website as a "source of news and entertainment in and about Connecticut." A page soliciting advertising in the Courant refers to "exposure for your message in this market" in the "best medium in the state to deliver your advertising message." The pages from ctnow.com, a website produced by the Courant, provide news stories from that day's edition of the Courant, weather reports for Hartford and [**8] New Haven, Connecticut, and links to sites for the University of Connecticut and Connecticut state government. The website promotes its online advertising as a "source for jobs in Connecticut." The website printouts provided for January 26, 2001, do not have any content with a connection to readers in Virginia.

The district court denied the newspaper defendants' motions to dismiss, concluding that it could exercise personal jurisdiction over them under Virginia's long-arm statute, Va. Code Ann. § 8.01-328(A)(3), because "the defendants' Connecticut-based Internet activities constituted an act leading to an injury to the plaintiff in Virginia." The district court also held that the defendants' Internet activities were sufficient to satisfy the requirements of constitutional [*261] due process. With our permission the newspaper defendants are taking this interlocutory appeal. The facts relating to jurisdiction are undisputed, and the district court's decision that it has personal jurisdiction over these defendants presents a legal question that we review de novo. See Christian Sci. Bd. of Dirs. of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). [**9]

II.

A.

A federal court may exercise personal jurisdiction over a defendant in the manner provided by state law. See ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997); Fed. R. Civ. P. 4(k)(1)(A). Because Virginia's long-arm statute extends personal jurisdiction to the extent permitted by the Due Process Clause, see English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990), "the statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries essentially become one." Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir. 1996). The question, then, is whether the defendant has sufficient "minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)). A court may assume power over an out of-state defendant either by a proper "finding [of] specific jurisdiction based on conduct connected [**10] to the suit or by [a proper] finding [of] general jurisdiction." ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711 (4th Cir. 2002). Warden Young argues only for specific jurisdiction, so we limit our discussion accordingly. When a defendant's contacts with the forum state "are also the basis for the suit, those contacts may establish specific jurisdiction." Id. at 712. In determining whether specific jurisdiction exists, we traditionally ask (1) whether the defendant purposefully availed itself of the privileges of conducting activities in the forum state, (2) whether the plaintiff's claim arises out of the defendant's forum-related activities, and (3) "whether the exercise of personal jurisdiction over the defendant would be constitutionally reasonable." Id. at 712. See also Christian Sci. Bd., 259 F.3d at 216. The plaintiff, of course, has the burden to establish that personal jurisdiction exists over the out-of-state defendant. Young v. FDIC, 103 F.3d 1180, 1191 (4th Cir. 1997).

B.

We turn to whether the district court can exercise specific jurisdiction over the newspaper [**11] defendants, namely, the two newspapers, the two editors, and the two reporters. To begin with, we can put aside the few Virginia contacts that are not Internet based because Warden Young does not rely on them. Thus, Young does not claim that the reporters' few telephone calls into Virginia or the Courant's eight Virginia subscribers are sufficient to establish personal jurisdiction over those defendants. Nor did the district court rely on these traditional contacts.

Warden Young argues that the district court has specific personal jurisdiction over the newspaper defendants (hereafter, the "newspapers") because of the following contacts between them and Virginia: (1) the newspapers, knowing that Young was a Virginia resident, intentionally discussed and defamed him in their articles, (2) the newspapers posted the articles on their websites, which were accessible in Virginia, and (3) the primary effects [*262] of the defamatory statements on Young's reputation were felt in Virginia. Young emphasizes that he is not arguing that jurisdiction is proper in any location where defamatory Internet content can be accessed, which would be anywhere in the world. Rather, Young argues that personal jurisdiction [**12] is proper in Virginia because the newspapers understood that their defamatory articles, which were available to Virginia residents on the Internet, would expose Young to public hatred, contempt, and ridicule in Virginia, where he lived and worked. As the district court put it, "the defendants were all well aware of the fact that the plaintiff was employed as a warden within the Virginia correctional system and resided in Virginia," and they "also should have been aware that any harm suffered by Young from the circulation of these articles on the Internet would primarily occur in Virginia."

Young frames his argument in a way that makes one thing clear: if the newspapers' contacts with Virginia were sufficient to establish personal jurisdiction, those contacts arose solely from the newspapers' Internet-based activities. Recently, in ALS Scan we discussed the challenges presented in applying traditional jurisdictional principles to decide when "an out-of-state citizen, through electronic contacts, has conceptually 'entered' the State via the Internet for jurisdictional purposes." ALS Scan, 293 F.3d at 713. There, we held that "specific jurisdiction in the Internet [**13] context may be based only on an out-of-state person's Internet activity directed at [the forum state] and causing injury that gives rise to a potential claim cognizable in [that state]." Id. at 714. We noted that this standard for determining specific jurisdiction based on Internet contacts is consistent with the one used by the Supreme Court in Calder v. Jones, 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984). ALS Scan, 293 F.3d at 714. Calder, though not an Internet case, has particular relevance here because it deals with personal jurisdiction in the context of a libel suit. In Calder a California actress brought suit there against, among others, two Floridians, a reporter and an editor who wrote and edited in Florida a National Enquirer article claiming that the actress had a problem with alcohol. The Supreme Court held that California had jurisdiction over the Florida residents because "California [was] the focal point both of the story and of the harm suffered." Calder, 465 U.S. at 789. The writers' "actions were expressly aimed at California," the Court said, "and they knew that the brunt [**14] of [the potentially devastating] injury would be felt by [the actress] in the State in which she lives and works and in which the National Enquirer has its largest circulation," 600,000 copies. Calder, 465 U.S. at 789-90.

Warden Young argues that Calder requires a finding of jurisdiction in this case simply because the newspapers posted articles on their Internet websites that discussed the warden and his Virginia prison, and he would feel the effects of any libel in Virginia, where he lives and works. Calder does not sweep that broadly, as we have recognized. For example, in ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625-26 (4th Cir. 1997), we emphasized how important it is in light of Calder to look at whether the defendant has expressly aimed or directed its conduct toward the forum state. We said that "although the place that the plaintiff feels the alleged injury is plainly relevant to the [jurisdictional] inquiry, it must ultimately be accompanied by the defendant's own [sufficient minimum] contacts with the state if jurisdiction . . . is to be upheld." Id. at 626. We thus had no trouble in concluding [**15] in ALS Scan that application of Calder in the Internet context requires proof that the out-of-state defendant's Internet activity is expressly targeted at or directed to [*263] the forum state. ALS Scan, 293 F.3d at 714. In ALS Scan we went on to adapt the traditional standard (set out in part II.A., supra) for establishing specific jurisdiction so that it makes sense in the Internet context. We "concluded that a State may, consistent with due process, exercise judicial power over a person outside of the State when that 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." ALS Scan, 293 F.3d at 714.

When the Internet activity is, as here, the posting of news articles on a website, the ALS Scan test works more smoothly when parts one and two of the test are considered together. We thus ask whether the newspapers manifested an intent to direct their website content -which included certain articles discussing conditions in [**16] a Virginia prison -- to a Virginia audience. As we recognized in ALS Scan, "a person's act of placing information on the Internet" is not sufficient by itself to "subject[] that person to personal jurisdiction in each State in which the information is accessed." Id. at 712. Otherwise, a "person placing information on the Internet would be subject to personal jurisdiction in every State," and the traditional due process principles governing a State's jurisdiction over persons outside of its borders would be subverted. Id.See also GTE New Media Servs. Inc. v. Bellsouth Corp., 339 U.S. App. D.C. 332, 199 F.3d 1343, 1350 (D.C. Cir. 2000). Thus, the fact that the newspapers' websites could be accessed anywhere, including Virginia, does not by itself demonstrate that the newspapers were intentionally directing their website content to a Virginia audience. Something more than posting and accessibility is needed to "indicate that the [newspapers] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state," Virginia. Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998) [**17] (quotation omitted). The newspapers must, through the Internet postings, manifest an intent to target and focus on Virginia readers.

We therefore turn to the pages from the newspapers' websites that Warden Young placed in the record, and we examine their general thrust and content. The overall content of both websites is decidedly local, and neither newspaper's website contains advertisements aimed at a Virginia audience. For example, the website that distributes the Courant, ctnow.com, provides access to local (Connecticut) weather and traffic information and links to websites for the University of Connecticut and Connecticut state government. The Advocate's website features stories focusing on New Haven, such as one entitled "The Best of New Haven." In sum, it appears that these newspapers maintain their websites to serve local readers in Connecticut, to expand the reach of their papers within their local markets, and to provide their local markets with a place for classified ads. The websites are not designed to attract or serve a Virginia audience.

We also examine the specific articles Young complains about to determine whether they were posted on the Internet with the intent [**18] to target a Virginia audience. The articles included discussions about the allegedly harsh conditions at the Wallens Ridge prison, where Young was warden. One article mentioned Young by name and quoted a Connecticut state senator who reported that Young had Confederate Civil War memorabilia in his office. The focus of the articles, however, was the Connecticut prisoner transfer policy and its impact on the transferred prisoners and their families back home in Connecticut. The articles reported on and encouraged a public debate in Connecticut about whether [*264] the transfer policy was sound or practical for that state and its citizens. Connecticut, not Virginia, was the focal point of the articles. Cf. Griffis v. Luban, 646 N.W.2d 527, 536 (Minn. 2002) ("The mere fact that [the defendant, who posted allegedly defamatory statements about the plaintiff on the Internet] knew that [the plaintiff] resided and worked in Alabama is not sufficient to extend personal jurisdiction over [the defendant] in Alabama, because that knowledge does not demonstrate targeting of Alabama as the focal point of the . . . statements.").

The facts in this case establish that the newspapers' [**19] websites, as well as the articles in question, were aimed at a Connecticut audience. The newspapers did not post materials on the Internet with the manifest intent of targeting Virginia readers. Accordingly, the newspapers could not have "reasonably anticipated being haled into court [in Virginia] to answer for the truth of the statements made in their articles." Calder, 465 U.S. at 790 (quotation omitted). In sum, the newspapers do not have sufficient Internet contacts with Virginia to permit the district court to exercise specific jurisdiction over them. *

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* Because the newspapers did not intentionally direct Internet activity to Virginia, and jurisdiction fails on that ground, we have no need to explore the last part of the ALS Scan inquiry, that is, whether the challenged conduct created a cause of action in Virginia. See ALS Scan, 293 F.3d at 714.

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11

We reverse the order of the district court denying the motions to dismiss for lack of personal jurisdiction made [**20] by the New Haven Advocate, Gail Thompson (its editor), and Camille Jackson (its reporter) and by the Hartford Courant, Brian Toolan (its editor), and Amy Pagnozzi (its reporter).

REVERSED


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Revell v Lidov

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OLIVER "BUCK" REVELL, Plaintiff-Appellant, versus HART G.W. LIDOV, an individual; BOARD OF TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, a foreign corporation (Columbia University); COLUMBIA UNIVERSITY SCHOOL OF JOURNALISM, an agency and/or Department of Columbia University in the City of New York, Defendants-Appellees.

No. 01-10521

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

317 F.3d 467; 2002 U.S. App. LEXIS 27200; 31 Media L. Rep. 1521


December 31, 2002, Decided

PRIOR HISTORY: [**1] Appeal from the United States District Court For the Northern District of Texas. Revell v. Lidov, 2001 U.S. Dist. LEXIS 3133.

DISPOSITION: Judgment of the district court affirmed.

COUNSEL: For OLIVER REVELL, Plaintiff-Appellant: Joe C Tooley, Rockwall, TX.

For HART G W LIDOV, Defendant-Appellee: Paul Christopher Watler, Robert Brooks Gilbreath, John T Gerhart, Jenkens & Gilchrist, Dallas, TX.

For BOARD OF TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, COLUMBIA UNIVERSITY SCHOOL OF JOURNALISM, Defendants-Appellees: Charles L Babcock, David T Moran, Kimberly Chastain Van Amburg, Jackson Walker, Dallas, TX.

JUDGES: Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

OPINIONBY: PATRICK E. HIGGINBOTHAM

OPINION:

PATRICK E. HIGGINBOTHAM, Circuit Judge:

[*468] Oliver "Buck" Revell sued Hart G.W. Lidov and Columbia University for defamation arising out of Lidov's authorship of an article that he posted on an internet bulletin board hosted by Columbia. The district court dismissed Revell's claims for lack of personal jurisdiction over both Lidov and Columbia. We affirm.

[*469] I

Hart G.W. Lidov, an Assistant Professor of Pathology and Neurology at the Harvard Medical School and Children's Hospital, wrote a lengthy article on the subject of the terrorist bombing of Pan Am Flight 103, which exploded over Lockerbie, Scotland in 1988. The article alleges that a broad politically motivated conspiracy among senior members of the Reagan Administration lay behind their wilful failure to stop the bombing despite clear advance warnings. Further, Lidov charged that the government proceeded to cover up its receipt of advance warning and repeatedly misled the public about the facts. Specifically, the article singles out [**2] Oliver "Buck" Revell, then Associate Deputy Director of the FBI, for severe criticism, accusing him of complicity in the conspiracy and cover-up. The article further charges that Revell, knowing about the imminent terrorist attack, made certain his son, previously booked on Pan Am 103, took a different flight. At the time he wrote the article, Lidov had never been to Texas, except possibly to change planes, or conducted business there, and was apparently unaware that Revell then resided in Texas.

Lidov has also never been a student or faculty member of Columbia University, but he posted his article on a website maintained by its School of Journalism. In a bulletin board section of the website, users could post their own works and read the works of others. As a result, the article could be viewed by members of the public over the internet.

Revell, a resident of Texas, sued the Board of Trustees of Columbia University, whose principal offices are in New York City, and Lidov, who is a Massachusetts resident, in the Northern District of Texas. Revell claimed damage to his professional reputation in Texas and emotional distress arising out of the alleged defamation of the defendants, [**3] and sought several million dollars in damages. Both defendants moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The district court granted the defendants' motions, and Revell now appeals.

II

A

Our question is whether the district court could properly exercise personal jurisdiction over Hart Lidov and Columbia University, an issue of law we review de novo. n1 The plaintiff bears the burden of establishing jurisdiction, but need only present prima facie evidence. n2 We must accept the plaintiff's "uncontroverted allegations, and resolve in [his] favor all conflicts between the facts contained in the parties' affidavits and other documentation." n3 In considering a motion to dismiss for lack of personal jurisdiction a district court may consider "affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." n4

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n1 Felch v. Transportes Lar-Mex SA De CV, 92 F.3d 320, 324 (5th Cir. 1996).


n2 Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir. 2000). [**4]


n3 Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000).


n4 Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985).

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A federal district court sitting in diversity may exercise personal jurisdiction over a foreign defendant if (1) the long-arm statute of the forum state creates personal jurisdiction over the defendant; and (2) the exercise of personal jurisdiction is consistent with the due process guarantees of the United States Constitution. n5 Because Texas's long-arm statute reaches [*470] to the constitutional limits, n6 we ask, therefore, if exercising personal jurisdiction over Lidov and Columbia would offend due process.

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n5 Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999).


n6 Electrosource, Inc. v. Horizon Battery Techs., Ltd., 176 F.3d 867, 871 (5th Cir. 1999).

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The Due Process Clause of the Fourteenth Amendment [**5] permits a court to exercise personal jurisdiction over a foreign defendant when (1) "that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing 'minimum contacts' with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend 'traditional notions of fair play and substantial justice.'" n7 Sufficient minimum contacts will give rise to either specific or general jurisdiction. n8 "General jurisdiction exists when a defendant's contacts with the forum state are unrelated to the cause of action but are 'continuous and systematic.'" n9 Specific jurisdiction arises when the defendant's contacts with the forum "arise from, or are directly related to, the cause of action." n10

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n7 Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945)).


n8 Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994).


n9 Mink, 190 F.3d at 336.


n10 Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001) (internal quotation marks omitted).

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B

Answering the question of personal jurisdiction in this case brings these settled and familiar formulations to a new mode of communication across state lines. Revell first urges that the district court may assert general jurisdiction over Columbia because its website provides internet users the opportunity to subscribe to the Columbia Journalism Review, purchase advertising on the website or in the journal, and submit electronic applications for admission. n11

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n11 The district court did not address Revell's general jurisdiction argument. It was made and we reach the issue. Singleton v. Wulff, 428 U.S. 106, 121, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976).

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This circuit has drawn upon the approach of Zippo Manufacturing Co. v. Zippo Dot Com, Inc. n12 in determining whether the operation of an internet site can support the minimum contacts necessary for the exercise of personal jurisdiction. n13 Zippo used a "sliding scale" to measure an internet site's connections to a forum state. [**7] n14 A "passive" website, one that merely allows the owner to post information on the internet, is at one end of the scale. n15 It will not be sufficient to establish personal jurisdiction. n16 At the other end are sites whose owners engage in repeated online contacts with forum residents over the internet, and in these cases personal jurisdiction may be proper. n17 In between are those sites with some interactive elements, through which a site allows for bilateral information exchange with its visitors. Here, we find more familiar terrain, requiring that we examine the extent of the interactivity and nature of the forum contacts. n18

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n12 952 F. Supp. 1119 (W.D. Pa. 1997).


n13 Mink, 190 F.3d at 336.


n14 Zippo, 952 F. Supp. 1119 at 1124.


n15 Id.


n16 Id.


n17 Id.


N18 Id.

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[*471] While we deployed this sliding scale in Mink v. AAAA Development LLC, it is not well adapted to the general jurisdiction inquiry, because even repeated contacts [**8] with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction -- in other words, while it may be doing business with Texas, it is not doing business in Texas. n19

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n19 Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 717 (5th Cir. 1999); see also Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) ("Engaging in commerce with residents of the forum state is not in and of itself the kind of activity that approximates physical presence within the state's borders.").

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Irrespective of the sliding scale, the question of general jurisdiction is not difficult here. Though the maintenance of a website is, in a sense, a continuous presence everywhere in the world, the cited contacts of Columbia with Texas are not in any way "substantial." n20

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n20 See Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir. 1994) (finding no personal jurisdiction over individual defamation defendants where the defendants did not conduct regular business in Texas and did not make a substantial part of their business decisions in Texas).

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Columbia's contacts with Texas are in stark contrast to the facts of the Supreme Court's seminal case on general jurisdiction, Perkins v. Benguet Consolidated Mining Co. n21 In Perkins, a Philippine corporation temporarily relocated to Ohio. n22 The corporation's president resided in Ohio, the records of the corporation were kept in Ohio, director's meetings were held in Ohio, accounts were held in Ohio banks, and all key business decisions were made there. n23 Columbia's internet presence in Texas quite obviously falls far short of this standard.

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n21 342 U.S. 437, 438, 96 L. Ed. 485, 72 S. Ct. 413, 63 Ohio Law Abs. 146 (1952).


n22 Id. at 447-48.


n23 Id.

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Our conclusion also comports with the recent decision in Bird v. Parsons, n24 where the Sixth Circuit found Ohio courts lacked general jurisdiction over a non-resident business that registered domain names despite the fact that: (1) the defendant maintained a website open for commerce with Ohio residents and (2) over 4000 Ohio residents had in fact registered [**10] domain names with the defendant. n25 By contrast, Columbia, since it began keeping records, never received more than twenty internet subscriptions to the Columbia Journalism Review from Texas residents. n26

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n24 289 F.3d 865 (6th Cir. 2002).


n25 Id. at 873-74.


n26 More precisely, there were 17 subscriptions by Texas residents in 2000 and 18 for the first two issues in 2001. R. at 305.

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C

Turning to the issue of specific jurisdiction, the question is whether Revell has made out his prima facie case with respect to the defendants' contacts with Texas. Zippo's scale does more work with specific jurisdiction -- the context in which it was originally conceived. n27

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N27 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1122 (W.D. Pa. 1997) (noting that the plaintiff conceded that only specific jurisdiction was at issue in the case).

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Revell urges that, given the uniqueness of defamation claims and their inherent ability to inflict injury in far-flung jurisdictions, we should abandon the imagery of Zippo. It is a bold but ultimately unpersuasive argument. Defamation has its unique features, but shares relevant characteristics with various business torts. n28 Nor is the Zippo scale, as has been suggested, [*472] in tension with the "effects" test of Calder v. Jones n29 for intentional torts, n30 which we address in Part II.D.

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n28 See Indianapolis Colts v. Metro. Balt. Football Club Ltd. P'ship, 34 F.3d 410, 411-12 (7th Cir. 1994).


n29 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984).


n30 We need not decide today whether or not a "Zippo-passive" site could still give rise to personal jurisdiction under Calder, and reserve this difficult question for another time.

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For specific jurisdiction we look only to the contact out of which the cause of action arises n31 -- in this case the maintenance of the internet bulletin board. [**12] Since this defamation action does not arise out of the solicitation of subscriptions or applications by Columbia, those portions of the website need not be considered.

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n31 Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001).

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The district court concluded that the bulletin board was "Zippo-passive" and therefore could not create specific jurisdiction. The defendants insist that Columbia's bulletin board is indistinguishable from the website in Mink. In that case, we found the website would not support a finding of minimum contacts because it only solicited customers, provided a toll-free number to call, and an e-mail address. n32 It did not allow visitors to place orders online. n33 But in this case, any user of the internet can post material to the bulletin board. This means that individuals send information to be posted, and receive information that others have posted. In Mink and Zippo, a visitor was limited to expressing an interest in a commercial product. Here the visitor [**13] may participate in an open forum hosted by the website. n34 Columbia's bulletin board is thus interactive, and we must evaluate the extent of this interactivity as well as Revell's arguments with respect to Calder.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n32 Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999).


n33 Id. at 337.


n34 See, e.g., Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 728 (E.D. Pa. 1999) (finding interactive internet newsgroups where defendant posted messages in common cyberspace accessible to all but ultimately holding personal jurisdiction could not be obtained).

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D

1

In Calder, an editor and a writer for the National Enquirer, both residents of Florida, were sued in California for libel arising out of an article published in the Enquirer about Shirley Jones, an actress. n35 The Supreme Court upheld the exercise of personal jurisdiction over the two defendants because they had "expressly aimed" their conduct towards California. [**14] n36



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. n37


The Court also relied upon the fact that the Enquirer had its largest circulation - over 600,000 copies - in California, indicating that the defendants knew the harm of their allegedly tortious activity would be felt there. n38

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n35 Calder, 465 U.S. 783 at 784-85.


n36 Id. 465 U.S. 783 at 789.


n37 Id. 465 U.S. 783 at 788-89 (emphasis added).


n38 Id. 465 U.S. 783 at 789-90 ("And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation.").

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**15]

[*473] 2

Revell urges that, measured by the "effects" test of Calder, he has presented his prima facie case for the defendants' minimum contacts with Texas. At the outset we emphasize that the "effects" test is but one facet of the ordinary minimum contacts analysis, to be considered as part of the full range of the defendant's contacts with the forum. n39

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n39 Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001).

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We find several distinctions between this case and Calder -- insurmountable hurdles to the exercise of personal jurisdiction by Texas courts. First, the article written by Lidov about Revell contains no reference to Texas, nor does it refer to the Texas activities of Revell, and it was not directed at Texas readers as distinguished from readers in other states. Texas was not the focal point of the article or the harm suffered, unlike Calder, in which the article contained descriptions of the California activities of the plaintiff, drew [**16] upon California sources, and found its largest audience in California. n40 This conclusion fits well with our decisions in other intentional tort cases where the plaintiff relied upon Calder. In those cases we stated that the plaintiff's residence in the forum, and suffering of harm there, will not alone support jurisdiction under Calder. n41 We also find instructive the defamation decisions of the Sixth, Third, and Fourth Circuits in Reynolds v. International Amateur Athletic Federation, n42 Remick v. Manfredy, n43 and Young v. New Haven Advocate, n44 respectively.

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n40 Calder, 465 U.S. 783 at 788; see also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 79 L. Ed. 2d 790, 104 S. Ct. 1473 (1984) (noting that the harm of a libelous publication is felt where it is distributed).


n41 See Panda Brandywine, 253 F.3d at 870 ("If we were to accept Appellants' arguments, a nonresident defendant would be subject to jurisdiction in Texas for an intentional tort simply because the plaintiff's complaint alleged injury in Texas to Texas residents regardless of the defendant's contacts ...."); Southmark Corp. v. Life Investors, Inc., 851 F.2d 763, 772-73 (5th Cir. 1988) (rejecting application of Calder and describing the plaintiff's decision to maintain its principal place of business in the forum state as "a mere fortuity" that could not support personal jurisdiction). But see Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir. 1997) (finding personal jurisdiction over a California business proper under Calder on the basis that the defendant's alleged threatening of one of the plaintiff's customers in New Jersey injured the plaintiff, an Illinois business, in Illinois); IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 263-65 (3d Cir. 1998) (recognizing circuit split between Janmark and views of the First, Fourth, Fifth, Eighth, Ninth and Tenth Circuits and adopting the majority view). We do not suggest that the analysis for defamation claims under Calder should differ from that utilized in our other cases, but merely provide further explication because this case is factually more similar to Calder. [**17]


n42 23 F.3d 1110 (6th Cir. 1994).


n43 238 F.3d 248 (3d Cir. 2001).


n44 - F.3d -, 315 F.3d 256, 2002 U.S. App. LEXIS 25535, No. 01-2340, 2002 WL 31780988, at *1 (4th Cir. Dec. 13, 2002).

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In Reynolds a London-based association published a press release regarding the plaintiff's disqualification from international track competition for two years following his failure of a drug test. n45 The plaintiff, an Ohio resident, claimed that the alleged defamation had cost him endorsement contracts in Ohio and cited Calder in support of his argument that personal jurisdiction over the defendant in Ohio was proper. n46 The court found Calder inapposite because, inter alia, the allegedly defamatory press release dealt with the plaintiff's activities in Monaco, not Ohio; the source of the report was a urine sample [*474] taken in Monaco and analyzed in Paris; and the "focal point" of the release was not Ohio. n47 We agree with the Reynolds court that the sources relied upon and activities described in an allegedly defamatory publication should in some way connect with the forum if Calder [**18] is to be invoked. n48 Lidov's article, insofar as it relates to Revell, deals exclusively with his actions as Associate Deputy Director of the FBI -- just as the offending press release in Reynolds dealt only with a failed drug test in Monaco. It signifies that there is no reference to Texas in the article or any reliance on Texas sources. These facts weigh heavily against finding the requisite minimum contacts in this case.

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n45 23 F.3d at 1112.


n46 Id. at 1119-20.


n47 Id. at 1120. The court also cited two distinctions arguably not present in this case: that the plaintiff's professional reputation was not centered in Ohio, and that the defendant did not itself publish or circulate the report in Ohio. Id. However, the defendant in Reynolds clearly knew that the plaintiff was an Ohio resident, unlike Lidov. See Part II.D.3.


n48 The Tenth Circuit has suggested that this is not a requirement of Calder. In Burt v. Board of Regents of University of Nebraska, 757 F.2d 242 (10th Cir. 1985), vacated as moot, Connolly v. Burt, 475 U.S. 1063, 89 L. Ed. 2d 599, 106 S. Ct. 1372 (1986), the court upheld the application of Calder to support personal jurisdiction in Colorado where a University of Nebraska doctor had written unflattering and allegedly defamatory letters about the plaintiff in response to requests from Colorado hospitals, despite the fact that the content of the letters focused on the plaintiff's activities in Nebraska, not Colorado. 757 F.2d 242 at 244-45. We find more persuasive the view of Judge Seth, who remarked, in dissent, that this represented "but half a Calder," which requires both the harm to be felt in the forum and that the forum be the focal point of the publication. 757 F.2d 242 at 245-47 (Seth, J., dissenting).

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In Remick the plaintiff, a Pennsylvania lawyer, sued several individuals for defamation arising out of two letters sent to the plaintiff in Pennsylvania containing oblique charges of incompetence and accusations that the plaintiff was engaged in extortion of the defendants. n49 The letters concerned the termination of the plaintiff's representation of one of the defendants, a professional boxer. n50 One of the two letters was read by individuals other than the plaintiff when it was faxed to the plaintiff's Philadelphia office. n51 The court held, however, that since there was nothing in the letter to indicate that it was targeted at Pennsylvania residents other than the plaintiff, personal jurisdiction could not be obtained under Calder. n52 Furthermore, the court noted that allegations that the charges in the letter had been distributed throughout the "boxing community" were insufficient, because there was no assertion that Pennsylvania had a "unique relationship with the boxing industry, as distinguished from the relationship in Calder between California and the motion picture industry, with which the Calder plaintiff was associated." n53

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n49 Remick, 238 F.3d at 257-58. [**20]


n50 Id.


n51 Id. 238 F.3d 248 at 257.


n52 Id. 238 F.3d 248 at 259.


n53 Id.; see also ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625 (4th Cir. 1997) (finding Calder inapplicable where allegedly tortious business activity was focused "more generally on customers located throughout the United States and Canada without focusing on and targeting South Carolina"); Pavlovich v. Superior Court, 29 Cal. 4th 262, 265-66, 127 Cal. Rptr. 2d 329, 58 P.3d 2 (2002) (rejecting the personal jurisdiction of California courts in a trade secret infringement case over a Texan who posted the offending computer code on a website).

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Similarly, in Young v. New Haven Advocate, n54 two newspapers in Connecticut posted on the internet articles about the [*475] housing of Connecticut prisoners in Virginia that allegedly defamed a Virginia prison warden. The Fourth Circuit held that Virginia could not exercise personal jurisdiction over the Connecticut defendants because "they did not manifest an intent to aim their websites or the posted articles at a Virginia audience." n55 Following [**21] its decision in ALS Scan, Inc. v. Digital Service Consultants, n56 it reasoned that "application of Calder in the Internet context requires proof that the out-of-state defendant's Internet activity is expressly directed at or directed to the forum state." n57 It observed that more than simply making the news article accessible to Virginians by defendants' posting of the article on their internet sites was needed for assertion of jurisdiction: "The newspapers must, through the Internet postings, manifest an intent to target and focus on Virginia readers." n58

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n54 - F.3d -, 315 F.3d 256, 2002 U.S. App. LEXIS 25535, No. 01-2340, 2002 WL 31780988, at *1 (4th Cir. Dec. 13, 2002).


n55 Id.


n56 293 F.3d 707 (4th Cir. 2002).


n57 Young, 2002 U.S. App. LEXIS 25535, 2002 WL 31780988, at *5 (citing ALS, 293 F.3d 707 at 714).


n58 Id.

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As with Remick and Young, the post to the bulletin board here was presumably directed at the entire world, or perhaps just concerned U.S. citizens. But [**22] certainly it was not directed specifically at Texas, which has no especial relationship to the Pan Am 103 incident. Furthermore, here there is nothing to compare to the targeting of California readers represented by approximately 600,000 copies of the Enquirer the Calder defendants knew would be distributed in California, the Enquirer's largest market. n59

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n59 Calder v. Jones, 465 U.S. 783 at 785 n.2, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984).

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3

As these cases aptly demonstrate, one cannot purposefully avail oneself of "some forum someplace"; rather, as the Supreme Court has stated, due process requires that "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." n60 Lidov's affidavit, uncontroverted by the record, states that he did not even know that Revell was a resident of Texas when he posted his article. Knowledge of the particular forum in which a potential plaintiff will bear the brunt of [**23] the harm forms an essential part of the Calder test. n61 The defendant must be chargeable with knowledge of the forum at which his conduct is directed in order to reasonably anticipate being haled into court in that forum, as Calder itself n62 and numerous cases from other circuits applying Calder confirm. n63 Demanding knowledge [*476] of a particular forum to which conduct is directed, in defamation cases, is not altogether distinct from the requirement that the forum be the focal point of the tortious activity because satisfaction of the latter will ofttimes provide sufficient evidence of the former. Lidov must have known that the harm of the article would hit home wherever Revell resided. But that is the case with virtually any defamation. A more direct aim is required than we have here. In short, this was not about Texas. If the article had a geographic focus it was Washington, D.C.

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n60 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985).


n61 Further evidence that the Calder defendants knew that the harm of their conduct would be felt in California came from their knowledge that the Enquirer enjoyed its largest circulation there. 465 U.S. at 789. [**24]


n62 Calder, 465 U.S. 783 at 790 ("An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California." (emphasis added)).


n63 See, e.g., Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) (stating that Calder requires that "the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state" (emphasis added)); IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 266 (3d Cir. 1998) ("The plaintiff must show that the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum." (emphasis added)).

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III

Our ultimate inquiry is rooted in the limits imposed on states by the Due Process Clause of the Fourteenth Amendment. It is fairness judged by the reasonableness [**25] of Texas exercising its power over residents of Massachusetts and New York. This inquiry into fairness captures the reasonableness of hauling a defendant from his home state before the court of a sister state; in the main a pragmatic account of reasonable expectations - if you are going to pick a fight in Texas, it is reasonable to expect that it be settled there. It is not fairness calibrated by the likelihood of success on the merits or relative fault. Rather, we look to the geographic focus of the article, not the bite of the defamation, the blackness of the calumny, or who provoked the fight.

Revell also makes various evidentiary objections to the affidavits introduced by the defendants to support their motions to dismiss. We conclude that all of these lack merit, and the district court did not abuse its discretion in rejecting them. n64 Alternatively, Revell asks that we remand for further discovery, but given the uncontroverted facts of the operation of Columbia's website, and lack of purposeful availment, we must decline to do so. n65

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n64 Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996). [**26]


n65 Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir. 2000) (affirming denial of discovery that "could not have added any significant facts" (internal quotation marks omitted)).

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IV

In sum, Revell has failed to make out a prima facie case of personal jurisdiction over either defendant. General jurisdiction cannot be obtained over Columbia. Considering both the "effects" test of Calder and the low-level of interactivity of the internet bulletin board, we find the contacts with Texas insufficient to establish the jurisdiction of its courts, and hence the federal district court in Texas, over Columbia and Lidov. We AFFIRM the dismissal for lack of personal jurisdiction as to both defendants.

AFFIRMED.


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Posted by stern130 at 6:28 PM · 5552

Gutnick


Continue reading "Gutnick"
Posted by stern130 at 11:23 AM · 5552

February 11, 2005

Deadlines and departures

5552 2-23 one or two page summary of paper topics
3-9 class in Walter library/ deadline for meeting with Kirtly
3-30 detailed outline with annotated biliography
paper:; legal protections at stake in evolving definition of journalist: libel, coyright, who IS a journalist...maybe just the 3rd?
8002 3-4 GSO paper presentations
3-11 discussion leader, 1st paper due
Paper Option 2; blogs as journalism. Paper : evolution of definition of a journalist, starting when?

8003 3-4 practice/consumption of journalism
3-11 abstracts due
Paper: lit review regarding changing media OR proposal for a research project (survey of blogging journalists????)

Posted by stern130 at 11:10 PM · Questions

February 8, 2005

Jameel Guardian articles

Wall St Journal's online libel win brings 'much-needed clarity'

Clare Dyer, legal correspondent
Friday February 4, 2005
The Guardian

Judges at the appeal court in London yesterday threw out a libel action against the Wall Street Journal's online publication because only five people in England had read the allegedly defamatory item.

In a ground-breaking judgment, the court, headed by Lord Phillips, master of the rolls, ruled that internet publishers could not be sued in the English courts unless there has been a "substantial" publication in England.

Their ruling leaves Yousef Jameel, the wealthy Saudi Arabian who tried to sue the Wall Street Journal's publisher - United States-based Dow Jones - in London, facing a bill of £150,000 for the online publication's costs.

The judgment dispels fears that internet publishers could be open to expensive lawsuits in foreign courts after a ruling in 2002 by Australia's highest court.

The court held that a Melbourne mining magnate, Joseph Gutnick, could sue Dow Jones in Australia over an article in the online version of its Barron's magazine which had only nine Australian hits.

Lord Phillips, sitting with Lords Justices Sedley and Jonathan Parker, said: "It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake."

Mr Jameel claimed that an article on the journal's website in March 2003 alleged that he was an early funder of Osama bin Laden before al-Qaida's leader started targeting Americans. The article contained a hyperlink to a document which he said referred to him.
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However, the journal could show that only five people in England had clicked on the hyperlink, including Mr Jameel's solicitor and two of Mr Jameel's business associ ates. The article was removed from the website in July 2003.

Lord Phillips said the damage to Mr Jameel's reputation had been "minimal".

No jury could be directed to award other than "very modest damages" after what would inevitably be a lengthy and expensive trial.

"The cost of the exercise will have been out of all proportion to what has been achieved," said the judge.

"The game will not merely have been not worth the candle, it will not have been worth the wick."

Mark Stephens, a solicitor acting for Dow Jones, said: "This is a significant decision for internet publishers. It starts to inject into the world of online publications some much needed clarity."

Continue reading "Jameel Guardian articles"
Posted by stern130 at 9:10 PM · 5552

February 4, 2005

How are newsblogs changing perceptions of journalism?

Study innovations in news gathering thanks to blogs

Define issues for departments of journalism

How has the internet made people more or less responsible for informing themselves

How will traditional definitions of "journalist" change to accommodate the internet?

How will one-person publishing/broadcasting change our notion of journalism.

Academic research has built in a realtively linear way, how will the internet change that?

Continue reading ""
Posted by stern130 at 8:59 PM · Questions

Mark Deuze October 2004

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This is a Linkdump & K-log. Goal: Building Theory about New Media, Culture & Society. Topics: Media | News | Journalism | Culture.

Thursday, October 21, 2004
The American Journalist

This was my 3rd essay for Cultureweek (September 2004), but the paper came out two months late due to growing pains (sic). This is an edited version.

It is election campaign frenzy in the United States. On television the networks and cable news channels cover the campaigns of the Democrats and Republicans extensively. The presidential election is also at the top of the news agenda in print and online news outlets. This extensive coverage gives us a lot of information about who’s who in American politics. But it also shows us the faces, names and opinions of the people responsible for covering these events: the journalists. Among journalists, those who report on politics, policy and politicians are seen as the cream of the crop. They are the public's eyes and ears on the campaign trail, the pack journalists or so-called 'Boys on the Bus', referring to the mostly male reporters who travel with the candidates. What do we know about these people beyond their faces on television and their bylines in print?

American journalists are, much like their colleagues in Western Europe or Australia, - college educated men in their early forties. This demographic is especially dominant among political correspondents. Journalists earn a decent living, but most them working in a corporate climate without a whole lot of job security.

One of the less fortunate side-effects of the growing concentration of media ownership in the United States is the corporate policy of job rotation. Journalists regularly switch between news beats and they are now also regularly moved around within a corporation but across the country. This means that an increasing number of reporters do not have roots in the communities they report on. One could argue this is rather unfortunate, as journalism that is supposed to be relevant to the everyday lives of people requires a level of embeddedness in their community. On the other hand, this detachment does fit comfortably with the occupational ideology of journalism that preaches professional distance and a commitment to objectivity and telling 'the truth'.

Journalists have embraced objectivity and detachment quite differently in the past. Back in the mid-20th century this for example meant that reporters and editors felt their most important role in society was to deliver 'hard' news as quickly and as neutral as possible. Journalism needed to become more 'objective' because of a simple commercial reason: being value-neutral means more people are likely to subscribe, watch or listen (and less likely to sue...). Other functions of journalism such as interpretation criticism, and entertainment were traditionally not considered to be as central to news work. Today, journalists want to do it all. Surveys of journalists show that they increasingly believe that they have to interpret the news in order for the average consumer to understand what is going on in the world. At the same time journalists are still held to deadlines. In the age of 24/7 news channels on radio, television and the World Wide Web (all channels that need to be filled with content - as cheap as possible) this leads to an almost inevitable result: fast news, fast interpretation, fast work.

The shift from delivering to interpreting the news is clearly visible in the content of today’s journalism.

Studies show that over the last few decades the role of journalists in the news has steadily increased. On television journalists get more screentime than their sources. Newspapers are growing thicker because more space is devoted to the opinions of columnists and op-ed writers, and more pages are alotted to features and special segments.

In short: journalists are becoming the news, they are not just reporting it.

The backdrop to all of this is an American society in which citizens spend less and less of their time consuming the products of journalism.

Perhaps there is a relationship between the two trends: while journalism becomes more detached from its audience and more involved with itself, (especially younger) audiences disconnect and spend their time watching John Stewart’s The Daily Show or surfing The Onion.com website while chatting, blogging and messaging non-stop (if they are not on their cellphone, that is).

Back to the current coverage of the elections in the US. In covering speeches, debates and other real-time campaign events with candidates Kerry and Bush, news media offer one of the few opportunities where once can listen more or less unfiltered to the people who will govern this important country. This is one of the few times that journalists on television keep their mouths shut (although not for long) and allow sources to speak without constant interruption. Regardless of the political propaganda, it is a rare chance for American voters (and on-lookers from around the world) to get an idea of who the political representatives are. It is sad but true that few people watch, or listen to this kind of news coverage. As a foreigner living and working in the US (since the Summer of 2004) I feel energized by this election campaign. I guess I am not used to passionate, inspired or convincing political rhetoric. In my country, The Netherlands, politics has gone to sleep. Here, in the United States, politics matter. November 2nd matters. I'd like to call on every citizen: don't miss out on live, uninterrupted coverage of debates, discussions and events, otherwise we have to listen to the journalists again (and they are already taking over).


If you want to know more about who American journalists are, check out a report written by four Indiana University Journalism professors (David Weaver, Randal Beam, Bonnie Brownlee, and G. Cleveland Wilhoit): "The American Journalist in the 21st Century: Key Findings". It is published by the John S. and James L. Knight Foundation in Miami, Florida, April 2003. For additional information: see a summary at the Poynter Institute website.

Other sources for the trends sketched here: authors such as Thomas Patterson, Todd Gitlin, Dan Hallin and Michael Schudson. Check them out.

# posted by Mark Deuze : 10/21/2004 01:57:42 PM

Friday, September 24, 2004
The Finnish magazine Maine (published in Finnish by Edita) asked me recently to write their monthly 'Guru' article on the changes and challenges facing journalism. I'd like to share my first draft here, and invite you all to mail me comments, feedback and other stuff you feel I should include (or exclude).

(working title): Journalism, Reinvent Thyself! (Word count: 969)

Just like society needs criminals and wars in order to maintain itself over time, journalism needs scandals and disruptive technologies in order to continuously re-: think about Great Britain in the peaceful post-WWII era or the profession of journalism in most Western democracies during the seemingly successful heydays of the late 1980s. In such a stagnant situation, social order is threatened to the point of collapse. In Great Britain this enabled a surge of regionalism and 'new' nationalism with Welsh, Scottish and northern Irish people reclaiming independence, resulting in increasing violence, economic upheaval and ultimately toppling governments. In journalism, the last two decades can be typified by the meteoric impact of digitalization and the World Wide Web, as well as by an increasingly fast-paced commercialization and conglomeration process affecting media industries and practices across the globe. In this essay I argue that this is what these social systems desperately need.

Societies, industries and professions need to be in a constant state of flux in order to preserve their dominant values, norms and ways of doing things. A primary function of real or perceived changes and challenges is social maintenance: perpetuating existing power relationships and hierarchies. Yet the contemporary journalistic ecosystem offers more opportunities than just restating mantras like "the pen is mightier than the sword" or convincing us that the written word is the superior way of communicating news. Bits, bytes and pixels as well as infotainment and emo-tv have opened to the door for different definitions of journalism to enter the mainstream. These are not necessarily 'new' definitions, as journalism has always been about selling a product and marketing that product across different media. My point: by embracing convergence, by moving journalistic products online, by including more personal, inclusive, emotional (and thus more feminine) approaches to journalistic storytelling, journalism as a whole enters a constant state of flux so cherished by management gurus. If we want journalism to survive this transition in a way that is vital and crisp rather than offering audiences more of the same old, its practitioners have to be made aware of the consequences of these changes, thus enabling them - reporters, editors, managers, producers and directors alike - to find their own voice rather than merely reproducing those of powerful others that came before them.

So, Journalism is changing. Journalism is part of an ever-expanding corporate media industry, whose companies consider news as but one of their wide range of products to be marketed to audiences. Journalism is also dependent on a vast array of technologies that facilitate and accelerate the process of gathering, editing and disseminating information. Journalism provides a service to society and in doing so is intrinsically linked to and part of society - a society that in today’s world is at once local and global as national borders are disappearing and migration flows span the globe. When adapting to these and other circumstances, journalism, indeed, is changing fast. Sure, professional journalism has always been part of commercial enterprises, made use of technologies and served a variety of audiences. The point is, journalism usually dealt with this in the same old way: by blindly fighting off anything that was perceived to be threatening 'editorial autonomy'; by using disruptive technologies like microphones, cameras, computers and Internet largely to repurpose the same stories and narratives produced before; and by firmly focusing on the dominant economically privileged culture of their society while delegating the 'others' (youths, women, ethnic minorities) to the margins of niche media.

Let us stop and think for a bit what this social maintenance behavior of journalists and their managers has resulted in. First of all, the 'mass' audience for news has vanished. An increasing number of news producers compete for a dwindling number of news consumers. Second, people in most Western democracies have become extremely distrustful of their journalists - as well as their politicians. For many people, politics and journalism represent the same thing: "people not looking like me, not taking me serious, not serving my interests." Third, all kinds of journalisms have emerged on the fringes of the mainstream increasingly finding audiences by simply allowing these audiences to become reporters themselves: discussion forums online, talk radio, SMS-television, citizen's media varying from pirate radio and community media projects to local independent television or print- and Web-based initiatives of what mainstream journalism likes to call 'alternative' media. As media companies are scrambling to build multimedia newsrooms and develop new formats for magazines and broadcast programs that disappear as fast as they arrive, they fail to understand nor embrace the inevitable consequences of the state of flux journalism finds itself in. Instead, journalism and journalists seem to dig ever-deeper trenches, burying their heads in the sand to avoid acknowledgement of a world not accepting their early-20th century ideals of serving the rational informed citizen anymore. Today's citizens are for all the right or wrong reasons increasingly convinced that what is important to them as individuals should be addressed by society’s institutions at once. A journalism that continues to treat people as a 'mass' based on gendered concepts like 'rationality', 'authority' and 'objectivity' using top-down storytelling devices runs the risk of making itself obsolete.

The World Wide Web enables the emancipation of the news consumer to become a fellow news producer. Commercialization promotes new styles of more personal and emotional storytelling and 'de-institutionalizes' the sourcing practices of mainstream journalists. The global multicultural society allows for the 'grayness' of real multi-perspectival news instead of the black-and-white of "getting both sides of the story." These are but a couple of simple lessons we can learn from the contemporary state of flux. Nostalgia only serves to maintain the causes for the troubles journalism finds itself in. It is time to reinvent journalism.


# posted by Mark Deuze : 9/24/2004 01:44:36 PM

Wednesday, September 01, 2004
Spending the summer settling in to the Midwest of the US, and ofcourse writing for Bloomington's Cultureweek. Here my 2nd installment:

The Framing of Michael Moore

The European media response to Michael Moore's film Fahrenheit 9/11 was mixed. Although the prevailing opinion in the United States seems to be that anti-Americanism dominates the European public sphere, the movie (opening across Europe about one month after its US premiere) was hailed as a cinematographical achievement but a dissappointment otherwise. European audiences do not think Moore is telling them anything new, as they have had their fair share of televised casualties of war, mourning families, and criticisms of President George W. Bush. If anything, the European media have already established a sceptical and critical attitude towards the American President and his advisors. In Europe then, Michael Moore is applauded for his art, and greeted with some indifference for his message. In other words: journalists and movie critics frame Moore as a gifted artist and filmmaker - hence his Palme d'Or award at the recent Cannes film festival.

How Michael Moore is framed in his beloved home country is an interesting other matter. Perhaps Moore himself gives the answer to this question in his 2001 book Stupid White Men, where he writes: "hey, take this book out of the humour section, I ain't kidding around!" (p.83). Indeed: Michael Moore is predominantly framed in the American media as a comedian. Let me elaborate this point on the basis of the various ways in which US newspapers and broadcast organisations have commented on, and talked about his current film, Fahrenheit 9/11.

A quick search using the infamous Google news search engine reveals roughly three ways in which journalists and movie critics used to describe Fahrenheit 9/11. First writers seem to deploy a neutral term like 'film', 'movie', or 'documentary' (although this already narrows the perspective down to a specific genre with certain conventions and rules). Second, descriptions are based on an evaluation of (some of) the content in Moore's film, where a prefix like 'anti-Bush', 'anti-war' or 'Bush-bashing' is used. Third, journalists go as far as to use value-laden concepts to in fact describe the film, where they deliberately put documentary in quotation marks (as in: "documentary"), or invent new terms like 'docutragicomedy', which strategy seems to dominate the ways in which Fahrenheit 9/11 is described in first instance.

By looking at the evaluative terms that are used to describe the film's content, its cinematographic style, and its overall perceived value and impact the framing of Moore's work as trouble-causing comedy becomes clear. Two distinct categories emerge. The first category consists of words that seem to thematize Michael Moore's work in terms of its distinctly critical perspective. Here, Fahrenheit 9/11 becomes 'incendiary', 'controversial' (CNN), ('bad' or 'proper') 'propaganda' (LA Times, Wall Street Journal, Slate), or even 'patronising' and 'socialist' (this last phrase was used several times by Bill O'Reilly of Fox). A second category of evaluations however redirects our attention to the entertainment-value of Moore's film. This category is filled with references – that seems to outnumber those of the other category by a ratio of 2:1 - such as: 'entertaining' (Kansas City Star, Lawrence Journal-World), 'hotbutter critique' (AP), 'satirical' (CBS News), 'a standup routine' and 'humorous' (Chicago Sun-Times, Rolling Stone).

As for the framing of Michael Moore the person, what is he according to journalists and movie critics in America? Here, in fact only one specific set of terms emerge: Michael Moore is a 'comedian', a 'gungho cowboy', a 'standup comedian' and ultimately even a 'scruffy' or 'fat' comedian. Sure, some media professionals make an effort to include other terms in their descriptions when they describe Moore as a 'troublemaking journalist/comedian/moviemaker' (Pittsburgh Tribune-Review), a 'demagogue' (New York Post), and as a 'propagandist standup comedian' (Time). In fact I only found one description that seems to be more or less value free: 'author-documentarian'.

Let me return to my original question and answer it: American news media consistently frame his work as funny or even hilarious and entertaining, while Michael Moore himself is framed as a comedian with, at best, journalistic aspirations. By casting the popular political criticism of Michael Moore as the sounds, words and images of a court jester, media in the United States in effect might succeed in disarming him. Why take the work of a comedian seriously? Indeed, this would mean spending resources - time and money - on thoroughly investigating the claims that he makes. As soon as people start laughing about his message the opportunity for a genuine discussion in the American public sphere is lost. There is another reason to wonder why US media seem to discredit Moore's work as 'popcorn politics' (Viscalia Times-Delta). Many of his arguments are in fact based on news reports by the same media that label him as a comedian. Moore is showing journalists what can be done if one does some homework rather than republishing the White House press releases. Moore, probably unintentionally, shows that journalists as the self-proclaimed watchdogs of society have been asleep on the job.

One can easily debunk all of this with the argument, that Moore himself so cleverly deploys humour as a device to tell his stories. I would like to argue, that his use of humour cannot be coined as comedy but rather as (political) satire - an intelligent way to reveal the absurdity and complexity of the American condition to larger audiences.

All of this beyond the question whether there is anything funny about mass lay-offs, small-town poverty and unemployment (Roger & Me), a nationwide gun culture of fear (Bowling for Columbine), or countless thousands of dead soldiers and civilians on all sides in a far away place (Fahrenheit 9/11). Maybe its just me, but I find nothing funny or hilarious about any of this.

# posted by Mark Deuze : 9/1/2004 10:36:05 AM

Tuesday, July 27, 2004
Change of Scenery

Again it has been a while - this time because I moved from The Netherlands to the United States last week. One of the many things Im doing these days, is writing a regular column about media culture for a relatively new free alternative paper in Bloomington (Indiana) called Cultureweek. As they do not have a website, I will post the columns for archival and feedback purposes here too. I'll start with the July 2004 issue.

The Problem of Journalism

Journalism is a problem. First, it is a problem for people using the products of journalism: newspapers, magazines, broadcast news, news websites. Increasingly we find information in these products that does not seem to have anything to do with our everyday life or with the priorities of interest we have set for ourselves. Second, it is a problem for the industry that both feeds and is dependent on journalism: media. Journalism is not identical with the media, which are the carriers of mass communication. The media need content to be matched to advertisers and audiences. This means media need masses. If anything, the current trend of fragmenting audiences and a corresponding proliferation of markets and products does not bode well for the media. Journalism used to function as social glue for media: its content kept people together, offered them stories that enabled people to talk with eachother in class, at work or in the supermarket. As journalism has become less relevant to people, they have turned away from news and now use other sources of information as raw materials fueling everyday talk: soap operas, gossip magazines, alternative media, popular music. Third, journalism is a problem for people doing journalism, making the news.

Journalists today face many different and interconnected challenges regarding technology, culture, and the political economy of their work. Technological, because media cross-ownership forces journalists from different (competing) media in local markets to work together and jointly produce multimedia journalism. It is safe to say most journalists really do not think this is a good idea. Cultural, because the rich multicultural diversity of contemporary society forces journalists to critically examine their own white, middle-class and masculine biases. The so-called Newsroom Diversity Index of 2004 of the Hoosier Times is zero (meaning there are no non-white reporters), as it is in many local newsmarkets in the United States and in Western Europe. Researchers at Indiana University (in 2002) claim more than two-thirds of US journalists are men, and their median age is 41 years. The political context of journalism is also rapidly changing, with governments (including the US) deregulating media markets all over the world, yet at the same time openly questioning press freedom. Corporate colonization of the newsroom is a continuing economic challenge to journalism, as is the ongoing concentration and globalization of media industries, making journalists smaller and smaller pawns in an expanding global news market.

Journalism as a problem is, fortunately, but one side of the newscoin. Journalism is also one of the most exciting, fun, popular, creative and free activities you can think of. Maybe we do not read the Herald-Times everyday and we do not watch FOX or ABC news all the time, but surveys still show people, young and old, more aware of issues facing the nation than their parents or grandparents were twenty or thirty years ago. Maybe we do not vote for political parties anymore, but we increasingly engage in political discussions (online and offline), and participate in all kinds of voluntary (if only temporary) groups, councils, clubs, and other public activities. People's everyday priorities are increasingly reflected by what scholars call non-traditional media: alternative weeklies (Cultureweek), satirical television shows (The Daily Show), websites (Indymedia), and private media or We Media online like group weblogs (Slashdot, Kuro5hin or 'corrosion'), and offline like community newsletters. This is also journalism - and it is not a problem.

Journalism operates as a highly autonomous, though not completely independent system. It has professional, corporate and mainstream properties as well as voluntarist, independent and alternative elements. Indeed, research shows that corporate reporters and editors share the same news values (objectivity, ethics and a quest for truth) as oppositional local radio volunteers or online independent media activists. It is naïve to assume corporate journalists to be sensationalism-hungry narcissists, or to think alternative reporters are all idealistic free spirits, as most journalists are a bit of both all the time. The crux of the matter is to find ways to criticize journalism that helps journalists to become more aware of the opportunities offered by convergence, diversity and understanding people’s everyday lives, while at the same time acknowledging the complex global, political and economical context within which all of this takes place.

As a Dutch journalist and media scholar, my main concern about US media is their blind fixation on the United States as a country without cultural, political and economical links with the rest of the world other than to far away places where American troops are sent to kill people. American culture is a reflection of global culture as much as it is an influence on cultures all over the world. Even in Bloomington, Indiana we feel this everyday, as people from all over the world study here, products from all over the world are sold here, and the problems we face every day are exactly the same as the problems experienced by people in other small towns in many different countries. What makes the US such an amazing country for people (like me) interested in media, is the fact that American journalism is both the best and the worst in the world. It is never mediocre. The US has an amazing tradition of free, independent and alternative or even oppositional media. Yet it has also the most commercial, hierarchical, superficial and sensational journalism one can think of. The weirdest thing is, that sometimes the same group of journalists produces news that fits both categories: one day they publish or broadcast horrific narrow-minded jingoist crap, the next day they offer moving and insightful in-depth reporting. In my home country, The Netherlands, journalism is okay. In the United States, my new country, journalism is brilliant and awful - but never just okay. And this makes it the most amazing place to be - especially if you are interested in the problem of journalism.

# posted by Mark Deuze : 7/27/2004 09:02:54 AM

Thursday, July 08, 2004
Thanks to Bicyclemark, check out this great collection of scholarly work on weblogs at the University of Minnesota. Among others, it features a nice essay on journalism and blogs by Brian Caroll, where he urges journalists to embrace "the communal ethos of the blogosphere".

It is this hybrid form of the 21st century news narrative, somewhere inbetween journalism's media logic and bloglogic, that I'm particularly interested in. Bicyclemark earlier also suggested this link to research on weblog networks as social ecosystems. My point: the (at least in part) disembodied nature of online communication and publishing may in fact help us to teach traditional journalism how to reconnect with 'real' people. Can you see the circularity?
# posted by Mark Deuze : 7/8/2004 12:59:25 AM

Wednesday, June 30, 2004
Before I go on, let me interpellate myself:


Creative Commons License

This work is licensed under a Creative Commons License.

# posted by Mark Deuze : 6/30/2004 05:17:37 AM

Wednesday, June 16, 2004
It has been a while... After the presentation of the paper (available in chunks below) at the conference in New Orleans - which was very nice - all my time has gone into packing my stuff for moving to the United States.

I have been thinking about bloglogic, though - the concept I introduced earlier as a way to map and understand blogging as a medium-specific set of communicative acts. Bloglogic, let me reiterate, consists of the particular institutionally structured features of a medium, the ensemble of technical and organizational attributes, and the cultural competences of users – all of which impact on what gets represented in the medium and how this gets done.

It is particularly useful to look at blogs, bloggers and blogging in this way, as it provides both specificity to an analysis of this phenomenon, as does it allow us to see how the various aspects of bloglogic have their roots, counterparts or histories in other (genres or types of) media. It is my contention that all media phenomenona have old and new properties in terms of the dynamic distinction between determined and determined properties, following Mark Poster. Poster (in a 1999 essay in New Media & Society) argues: "What is new about the medium of the Internet – which I distinguish from print and broadcast media – is that as a machine, a thing in the world, an object extended in space, in short as simply one more technological device, it is nonetheless underdetermined." Later on in this work, Poster amplifies his concept: "With the term ‘underdetermination’ I contend that certain social objects that I call virtual (hypertexts, for example) are overdetermined in such a way that their level of complexity or indeterminateness goes one step further. Not only are these objects formed by distinct practices, discourses and institutional frames, each of which participates in and exemplifies the contradictions of capitalism and the nation state, but they are open to practice; they do not direct agents into clear paths; they solicit instead social construction and cultural creation."

My point here is, that all media always have dominant (that is: redundant, determined, self-similar, consensually specified) as well as marginal (or: complex, random, undetermined, disruptive, different) properties. Identifying these properties within the framework of bloglogic may help harnassing our understanding of this phenomenon beyond what Poster beautifully critiques as: "technophobic demonization" versus "naive celebration", and "we might avoid overlooking what is genuinely different about it as well as greeting it with unattainable novelty."

Reference: Mark Poster (1999). Undetermination. In: New Media & Society 1 (1), pp.12-17.

# posted by Mark Deuze : 6/16/2004 06:58:16 AM

Wednesday, May 26, 2004
Final part of ICA paper, #6

For comments, criticism and a copy of the bibliography, please send me an e-mail.

Synthesis

In the final section of this essay I discuss the ways in which digital culture can be seen as a self-organizing property of Indymedia and journalism. With self-organization or autopoiesis I consider the various ways in which social groups (families, neighbourhoods, circles of friends) and social systems (medicine, law, politics, journalism) continually reproduce themselves by internalizing particular values, beliefs and practices operationally independent from the outside world yet at the same time structurally coupled with other groups and systems within that world. This notion was originally introduced in the 1970s by Chilean biologists Herbert Maturana and Fracisco Varela and has been introduced in the social sciences most prominently by German sociologist Niklas Luhmann. Self-organization is not particular to digital culture, as much as distantiation, participation and bricolage have manifestations before or next digital culture as well. Indeed, I consider all (social) systems to have autopoietic properties. Niklas Luhmann (1990) primarily considers the communicative acts and relationships within a social system as self-organizing, rather than the actors (that is: people) themselves. My argument therefore maintains that a digital culture is created, reproduced, sustained and recognized as such through the ways in which people establish relationships and communicate about these relationships. What is amazing about a digital culture - rather than a print, visual or information culture - is that it fosters community while at the same time can be fueled by isolation. In other words: we can be (or feel) connected to everyone else within the system - for example through chatrooms, Instant Messaging, group weblogs, Trackback systems and RSS (Really Simple Syndication or Rich Site Summary) feeds on individual weblogs, Usenet discussion groups, Bulletin Boards Systems, SMS-tv, and so on - while at the same time being isolated as individuals sitting at a desk in front of a computer at home, at the office, in a public library or internet cafe. Yet digital culture is not self-created and self-maintained through connected devices and access alone - it also has self-referential properties in that certain values, beliefs and practices are preferred over others. A good example is the emergence of a Netiquette as an evolving set of ethical guidelines for communicating and publishing online. These values are sometimes formulated in opposition to (and thus distantiated from) those upheld by mainstream corporate media: preferring the personal experiental account rather than professional detached observation, heralding openness for all rather than access based on expertise claimed on the basis of institutional authority, attributing more weight to providing a bottom-up platform for individual voices instead of top-down delivering of messages based on a consensual perception of the common denominator. Again we must realize that such values have not sprung into existence when the first Bulletin Board System went online. What has happened, though, is an acceleration of acceptance of these values through the ongoing proliferation of internet access and usage, and a corresponding process of infusing disparate social systems like oppositional social movements and professional journalism, inspiring the emergence of Indymedia and participatory news. If publics increasingly demand to have a say in the news, even though they do not know what they talk about nor are they generally interested in that news, it must be seen as a communicative act and thus an autopoietic component of digital culture. Digital culture, in other words, can be characterized by participation, distantiation and bricolage as its key elements, whih self-organizing properties are part of online (Indymedia) as well as offline (journalism) news media phenomena.

We live in a digital culture. That culture is still evolving - as all cultures are and always will be - in the directions as outlined in this essay. This will have consequences for the way we work, communicate, give meaning to our lives. We are at once local and global, individual and collective, isolated and connected, engaged and apathetic. I hope to have showed that this seemingly eclectic and paradoxical mix of values and charactertistics are by no means mutually exclusive, but rather must be seen as constituents of each other, and parts of a whole that is digital culture. Some of the most pressing debates of today - about authenticity and originality, self-determination and social cohesion, equity and equality - are already influenced by this emerging cultural system all over the world. Social systems in society are feeling the impact of this emerging cultural consensus as well - especially the traditional institutions of modernity: parliamentary democracy and journalism. With a discussion set against the backdrop of Indymedia and journalism I have aimed to synthesize the core elements of digital culture with the often-voiced concerns about the decline or change of national politics and mainstream news media, in order to show how new types of citizenship, participation, activism, dialogue and interactive communication have emerged. There is a message of hope here somewhere.

This sweeping overview of what in my opinion are the three core elements of contemporary digital culture - participation, distantiation, and bricolage - hopefully shows effectively that the phenomena we observe in daily life online have their emergent properties in the offline of days gone by. I realize I am not suggesting anything new or original here - I am merely offering my own bricolage in order participate in the self-organizing system that is academia, and by referring to authors before me building on their ideas and publications, I hope to become part of a creative commons that inherently consists of multiple authorship and collaborative control over the concepts we discuss.

[The End].

# posted by Mark Deuze : 5/26/2004 05:15:36 PM

Continuing ICA paper, #5

Bricolage

John Hartley (2002: 22ff), referring to Claude Levi-Strauss, defines bricolage as the creation of objects with materials to hand, re-using existing artefacts and incorporating bits and pieces. According to Hartley, bricolage incorporates practices and notions like borrowing, hybridity, mixture, and plagiarism. Most scholars in media and cultural studies invoke bricolage when describing the mixing, reconstructing and re-using of separate artifacts, actions, ideas, signs, symbols and styles in order to create new insights or meanings. Bricolage has many manifestations: as in the various ways in which (sub-) cultures constitute their 'new' identity by borrowing artefacts - clothes, hairstyles, accessories - and ritualistic activities - dancing, communicating, performing - from a wide variety of groups and time periods. The extreme metal scene for example combines Biblical with oppositional references (the inverted cross) in order to distinguish itself from the mainstream, to that purpose also wearing shirts with gory pictures or offensive words printed on front and back (Purcell, 2003, p.29). This kind of blending to achieve new - if only temporary - styles, indentities or subcultures has also been associated with the supposed end of Grand Narratives as a typical feature of Lyotards' postmodern era.

With bricolage originality or a modernist emphasis on 'first things' as an emblem of quality is thrown out of the window in favor of an attitude that prefers an assemblage of good copies over a single bad original. The international resistance against the efforts of the media publishing, recording and distributing industries to defend the copyrights of their materials is a good example of a phenomenon that is tied in with bricolage as the legitimate way of doing things in today’s emerging digital culture. Again I must emphasize how bricolage has its roots in mid- to late 20th century developments in for instance the arts and sciences. Examples of people openly embracing the identity of a bricoleur can be found from popular music to postmodern philosopy. In music, bricolage is applied by artists in all genres, from a mainstream artist like David Bowie changing faces every four years or so to a marginal band like black metallers Dimmu Borgir from Norway mixing classical music, pop melodies, extreme hard rock music with a highly decorative band image reminiscent of the days of Kiss and Alice Cooper. Another excellent example of a late 20th century celebration of bricolage is the popularity of disk-jockeys who mix, cut, edit and re-assemble bits and pieces of music to shape new soundscapes fueling parties and raves all over the world. In philosophy we find the bricoleur embraced by pragmatism’s leading philosopher Richard Rorty from the United States, while online the ultimate bricoleurs are the individual webloggers of the world with their daily musings, linkdumps and ramblings.

Bricolage plays an important role in the realm of politics and political citizenship, as although people may recognize Left from Right, Progressive from Conservative or for example Democrat from Republican, they also experience problems when having to identify themselves (as voters) exclusively or explicitly with a single side. People assemble political positions on just about everything rather than follow the guidelines of a single party program or political ideology. As Anthony Giddens has argued, today we are immersed in our highly personal life politics - another building block the individualized society - through which the multiple private and public spheres we (assume we) belong to get meaning. Those meanings are not necessary consistent, nor are our convictions implicitly rational and deliberate. The bricoleur-citizen identifies with many issues, images and symbols before (or, heaven forbid, after) voting or enacting some other kind of civic engagement.

On the World Wide Web bricolage is evident in the ways in which we click, publish and link our way online. Chandler (1998) applies bricolage in a textual analysis of personal Home Pages: especially in a virtual medium one may reselect and rearrange elements until a pattern emerges which seems to satisfy the contraints of the task and the current purposes of the user. Indeed, no version of the resulting text need be regarded as final - completion may be endlessly deferred in the medium in which everything is always 'under construction'. In (online) journalism bricolage is acknowledged in the common practice of shovelware: the repurposing or windowing of content. Online, journalists re-use and re-distribute edited and otherwise manipulated versions of content originally produced for offline media. News sites generally offer repurposed or aggregated content that was previously produced and used in other media, such as audio and video clips, still image galleries, logos and icons, bits and pieces of written text. When online journalists acknowledge their sources and offer internal or external hyperlinks to a vast array of materials, documents, related stories, archival content, and other sites, they attribute an active bricoleur-identity to their users as they give people a chance to find their own way through the information at hand (Deuze, 2003). Indymedia websites are also a good example of this practice, as IMC sites tend to offer a bewildering array of links to topics, sources (sometimes including Web radio and video), issues and places all over the world. To the average journalist or politician this chaotic, disorganized and seemingly random display and practice of online information is pure horror. How to make sense of it all? What is credible information? Help! Credible and manageable or not: this is the way people behave online (and increasingly offline as well: constantly zapping, browsing, switching and even multitasking between and within different media types, genres and formats).

Digital culture consists of the practices and beliefs of the bricoleur - whose activities should not be confused with boundless freedom and endless creativity, however: The bricoleur’s strategies are constrained not only by pragmatic considerations such as suitability-to-purpose and readiness-to-hand but by the experience and competence of the individual in selecting and using 'appropriate' materials (Chandler, 1998). Again, bricolage as an emerging praxis can be considered to be a principal component of digital culture, as well as an instigator, engine, and accelerator of it.

[to be continued]

# posted by Mark Deuze : 5/26/2004 04:58:49 PM

Continuing ICA paper, #4 (two installments to go)

Distantiation.

Distantiation is a concept that has a determined pre-internet meaning and existence. The way I would like to use it here stems from cinema studies (and takes its cue from Louis Althusser), and can be understood as a manipulation of the dominant way of doing or understanding things in order to juxtapose, challenge or even subvert the mainstream. On a societal level distantiation manifests itself as hyperindividualization or the extreme fragmentation of contemporary society into personal public spheres within which we only talk to and with ourselves. Such individualization is considered to be a particular feature of the gradual (and structurally incomplete) transition from industrial to information societies in elective democracies around the world. This global shift to individualized societies has been described by Zygmunt Bauman as an inevitable development, as he concludes: the way individual people define individually their individual problems and try to tackle them deploying individual skills and resources is the sole remaining 'public issue' and the sole object of 'public interest' (2000: 72). This means that digital culture can be characterized by the distantiation of the individual from society. This trend is also articulated in the disconnection-participation concept as discussed before, specifically with reference to the co-constituent rise of DIY culture, voluntarist civic engagement and self-righteous media citizenship. Such fragmentation of publics is countered by a recogniztion of Marshall McLuhan's global village or Manual Castells' network society as expressions of our sense of place and identity - especially embraced by multinational mass media corporations in their efforts to bring the globe to our doorstep via satellite news feeds and global news networks customized to regional particularities, adding emphasis to the global nature of local problems and vice versa (Merrill & De Beer, 2004).

We at once belong to ourselves and nothing but ourselves (and this is indeed what consumer culture seems to reinforce), as do we belong to the world in general and thus to everyone else. In the political-economical lingo of globalization: no one is outside anymore. At the same time, our immersement in the global village does not mean we all become the same, nor that an universal identity is likely to emerge. As Zizek (1998) critically points out: what is effectively threatened by globalization is not the cosa nostra (our private secret way of life from which others are excluded, which others want to steal from us), but its exact opposite: universality itself in its eminently political dimension. In this sense, globalization and individualization keep everything and everyone firmly in place and thus constitute each other across time and space. The parallel notions of place and time can be distantiated in that these concepts have become more flexible in a digital, mobile, always-online network society. What are meaningful properties of close and recent in a global economy, or indeed in a network society? Can there be a centralized or dominant system governing our understanding of real-time telepresence? It seems time and place have become arenas of continuous contention, and are increasingly open for all to define. In terms of digital culture it makes sense to look at some of the most successful online applications for everyday individual use - of which weblogs and the various ways in which these are redistributed are an excellent example. Mortensen and Walker (2002: 267-8) opt that blogs encourage a feeling of time, in that on weblogs posts are arranged chronologically, determined by the time of thinking. Weblogs are considered to be more similar to the way we think and act in everyday life - which can be typified by the paradox between inconsistency and chronology - than for example the kind of narrative offered through newspapers or broadcast newscasts - functioning on the basis of (patterned) selectivity and linearity. Indeed, if anything, webloggers define what they do as more or less similar to journalism, but consider their personal voice, subjective style and perhaps un-professional petit-narratives to be of added value, and they feel this sets them apart from the news media (Neuberger, 2004). In fact, webloggers tend to do what they do in distantiation from what journalists do, while at the same time adopting some of journalisms' peculiar strategies and techniques (Lasica, 2001). The same rationale can be said to apply for oppositional media in general, and online alternative media in particular (Eliasoph, 1988; Platon & Deuze, 2003).

The discussion on whether blogging can or should be considered a form of journalism and whether journalists should become bloggers is alive and well on the Web and in some the literature (Lasica, 2001; Rosen, 2004; Glaser, 2004). In a discussion piece in the Online Journalism Review (of September 24, 2002) column writer Dan Gillmore is quoted as claiming: Weblogs are certainly part of the process that adds up to journalism. I'm talking about the trend of do-it-yourself journalism. We think of journalism in terms of this late 20th Century model of mass media, where gatekeepers gather news from sources and send it out to readers [...] There's this blurring of lines and I don't know where it's going to come out, but I do know that something major is going on that is bringing journalism from the top down and the bottom up. Here, Gillmore connects the emergence of a DIY culture with relatively new kinds of journalism as well as with the signaled trend towards ever-increasing individualization. In the same piece, journalist Paul Andrews implicitly addresses the relationship between participatory media, journalism, and distantiation: A new style of journalism, based on a 'raw feed' directly from the source, is emerging. Journalists testing the new waters are bound to wreak havoc on institutionalized media. If blogging - and Indymedia can be considered to be an example of a oppositional news-oriented group weblog - in some ways is a subversion of the mainstream institutionalized media approach to news, its practice also builds on a long tradition of alternative media, as well as so-called citizen's media based on communication, dialogue and conversation within certain communities. In pre-Web times the popularity of such media - or in terms of distantiation the increasing impopularity of mainstream corporate media - has been embraced by parts of the news industry, adopting the techniques and strategies of so-called public or civic journalism - a movement emerging during the late 1980s (Rosen, 1999). As defined by pundits, public journalism has two prime goals: one is making news organizations listen more closely to their audiences, and two: making news organisations play more active roles in their communities (Merrit, 1995). At the core of this argument seems to be a normative assumption that in order for journalism to survive into the 21st century, participation should be embraced over detachment. Although this does tie in with the cultural importance of participation as discussed earlier in this essay, it must be noted that the popularity of participatory forms of journalism can at least in part be explained by the fact that these run counter to what institutionalized media traditionally offer. As former CNN-reporter Rebecca McKinnon writes: the blog has emerged as an effective vehicle for alternative citizen-journalism, from time to time effectively 'hacking' the mainstream media's spin-cycle and bringing important news to public attention (2004). Heikki Heikkila and Risto Kunelius (2002) suggest the popularity of such dialogical types of journalism can be explained by the failure of mainstream serious journalism to address the experiences of people in a meaningful way. What is important for my argument here is the interconnectedness of distantiation, Indymedia, journalism and digital culture.

Distantiation can be countered by a return to (or, as some say: a retreat into) tradition, where tradition can be seen as the perceived safety or sense of security in sameness, similarity, routines, and deeply entrenched patterns of organization. This notion becomes visible through the increasing problematization of the inevitable by-products of globalization: worldwide migration, resistant social movements (aka: freedom fighters or terrorists), popular consumer culture, and the displacement of labor. But this is just one way of interpreting distantiation dialectically. The examples I have used to discuss distantiation in the context of digital culture vis-a-vis media, journalism, and weblogging also show that distantiation does not necessarily mean different from, or in radical opposition to, the mainstream or dominant ways of doing things. Public journalism is still very much an institutional journalism; group weblogs are most definitely based on consensual ethical behavior (Netiquette) and journalistic quality principles (such as authority, legitimacy, and credibility); Indymedia websites are maintained and sometimes edited, filtered or content-wise managed by so-called editorial collectives where processes of decision-making evolve quite similar to those in the average corporate newsroom (Schudson, 1999; Matheson, 2003; Platon & Deuze, 2003). Distantiation in digital culture perhaps means being deeply immersed in the sytem while at the same time attributing legitimacy and credibililty to a self-definition of working against or outside of the system. Seen as such, I am interested in the ways in which participation and distantiation as somehow mutually exclusive or even self-contradictory aspects of digital culture are sustained and developed over time by people in everyday life, and particularly by people involved in and affected by news media. If participation and distantiation are key concepts in digital culture, how do people recognize each other as such, attribute quality and legitimacy to their actions, and what is different about media production and consumption in a digital culture, rather than a print, visual or information culture? For now, my answer refers to a third principal component of digital culture: bricolage.

[to be continued...]

# posted by Mark Deuze : 5/26/2004 10:07:02 AM

Tuesday, May 25, 2004
Continuing ICA paper, #3

Participation

In a time when political scientists become internationally famous by claiming that the social capital of society is in decline because American people do not participate in league bowling as much as they used to (Putnam, 1999), it may be counter-intuitive to claim that a more engaged and participatory culture is emerging. Yet that is exactly what is going on if one looks at the field of media. Ever since the mid-20th century so-called alternative media have flourished and in some cases even gained mass acceptance and popularity (Atton, 2001). I am talking about pirate radio stations, small-scale print magazines (often originating in less-than-affluent social contexts such as squatters and the homeless), local newspapers and radio stations, since the 1980s community-based Bulletin Board Systems and Usenet newsgroups on internet, and later on a wide range of genres on the Web such as community portal sites, group weblogs, voluntary news services, and so on. The level of participation within the media system has increased throughout the years; perhaps people stopped bowling in order to have more time to go online, build low-tech short-wave transmission stations, or to establish citizen's media? Rodriguez (2004) explicitly connects participation as a defining principle of digital culture with the emergence of Indymedia (or IMC: Independent Media Centers): From the beginning, the IMC was not thought as a communication centre where information products were designed for the un-informed majorities, but more as a hub of exchange, dialogue, and articulation to be used by all. Yet this is not just an aspect of alternative or citizen's media – participation as a principal component of contemporary culture has also been established and acknowledged in the mainstream media, with (also from the late 20th century) functions like newspaper ombudsmen and reader representatives becoming an accepted part of newsroom organization, at the same time when journalists, scholars and media critics alike increasingly call for journalism to become more responsible, responsive and transparent (Kovach & Rosenstiel, 2001). In digital culture, participation and journalism meet in different ways, leading some industry observers to claim that journalism must prepare itself for an upcoming era of participatory news, as Dale Peskin (2002) predicts it: [n]ews evolves into collaborative, a participatory activity. Everyone is a journalist, or can be. Peer-to-peer news will eclipse business-to-consumer news.

A remarkable characteristic of this kind of participation is that its often communal. People working on such efforts generally do it for different reasons, but essentially do it together in groups or even (virtual and/or physical) communities. Translated in terms of journalism this would mean they enjoy a system of multiple authorship and ownership over their media - which Beam (1990) considers to be a defining element of professionalism for journalism. Coupled with the widespread proliferation of computers and internet connections to the home (and to handheld mobile devices), a recognition of this culture of participatory authorship has come from software developers where they have introduced the concept of open design. The most advanced form of this type of design is advocated by the Open Source Movement, based on the principle of shared and collaborative access to and control over software, and using (or rather: tweaking) it to improve the product for the benefit of other users. This perceived necessity of user-participation in product-development and productivity has also been acknowledged in the realms of marketing, management, and even news media (Bar, 2001; Bowman & Willis, 2003; Gillmor, 2004).

Participation has a distinctly political dimension, as it ties in with a shift in the identity of citizens in contemporary elective democracies from a rather passive informed or informational citizenry to a rights-based, cultural and voluntary citizenry. This shift, taking place from the mid-20th century to the early 21st century as for example Hartley (1999), Schudson (1999), and Norris (2001) document, basically entails a notion of citizens who have become increasingly willing and able to voice their concerns and claim their place in society but do so (and often only) whenever they feel their personal (including familial, communal, and sometimes regional or national) interests are at stake. As fas as media go, this means people can be apathic, passive couch potatoes for ninety percent of their time, but become directly engaged participants in some local or global Habermasian public sphere when issues are involved which they have prioritised for themselves (hence my earlier suggestion of a necessary interdependency of participation and disconnection).

Participation as a core element of digital culture also has its roots in an emerging DIY (Do-It-Yourself) culture, particularly flourishing during the 1990s, with people increasingly claiming the right to be heard rather than be spoken to - such as in the case of the traditional mass media broadcasting model - there is even a DIY channel on the US cable television network. Hartley (2002: 75-77) describes how this kind of self-righteous media citizenship also incorporates notions of mutuality, solidarity and interactivity. Interactivity is generally considered to be one of the unique characteristics of networked digital technologies such as internet (Dahlgren, 1996; King, 1998). On the other hand, varying levels of interactivity exist in all media, with online media perhaps featuring the most advanced, multiple way options for interaction. Participation as a meaning-making value has specific internet exponents, for example present in the praxis of individual and collaborative weblogging. Tim Dunlop summarizes how weblogs have political and cultural dimensions, possibly interpellating our understanding of democracy, journalism, and other (exclusive, top-down, elitist) expert systems in society: To some people, weblogs (blogs, as the word is almost universally abbreviated to) are a geek hula-hoop, a fad that will pass once the novelty wears off; a bit of fun, but not something to get too excited about. To others they represent a rebirth of participatory democracy, a new form of journalism, and even the home of the new public intellectuals (2003).

It is tempting to claim people in (Western) democracies have become nothing but complacent consumers hell-bent on shopping and watching reality television, celebrity news or soap operas, if a narrow definition of social capital and civic engagement is used. Yet I would like to argue that today's citizen is more engaged than ever before, even if it is not within the confines of membership-based political parties, civic organizations and amateur bowling-league teams. Participation, not in the least enabled and amplified by the real-time interconnectedness of internet and however voluntaristic, non-linear, and perhaps solely fueled by particular interests is a core aspect of digital culture, and thus of an emerging (global) consciousness. I am not claiming this is good or better than other ways of circulating and producing meaning, but I do feel a sense of participation is what people have come to expect from those aspects of society they wish to engage (cf. perform) in.

[to be continued...]


# posted by Mark Deuze : 5/25/2004 08:53:39 PM

Continuing ICA paper, #2

Digital culture

It is important to note that a sketch of characteristics common to a culture does not presuppose that all individuals located within that culture behave or act in similar ways. What I do want to suggest however, is that the actions and behaviours of peoples within digital culture can be summarized into a set of common elements, which we can use to study and understand the role of media and journalism in particular. In other words: a digital culture does not imply that everyone is or sooner or later will be online, but it assumes that the increasing computerization and digitalisation of society has consequences on a shared social level, both online as well as offline. I consider these consequences as these manifest \themselves in our current ways of thinking about journalism and internet.

In this context Lev Manovich (2001: 13) introduced the concept of an information culture as constituted through the visual language of the 20th century, incorporating several new ways in which information is presented and consumed, for example via displays in empty spaces like hotel lounges, airports, and shopping malls, the design of information carriers (varying from books to PDAs), and last but not least: computers. According to Manovich all these representations converge as shops are outfitted with computer screens and digital video displays, computers are outfitted for television and movie viewing, and paper, broadcast technologies and computer networks all merge into mobile wireless applications. This has consequences for the way we see and perceive the world around us. After traveling around the world, media historian Mitchell Stephens (1998) signaled the omnipresence of edited, manipulated and tweaked images as meaning-makers in the daily lives of people across the globe. The many scrambled, edited and converged ways in which we produce and consume information worldwide are gradually changing the way people interact and give meaning to their lives, according to such authors. But the emergence of such a manipulated and edited worldview in itself is not so much part of the digital culture I aim to describe here – it is an accelerator or amplifier of digital culture. As Jean Baudrillard foresaw in a famous essay of 1981, a hyperreal world is emerging in an age of simulation, typified by the realization that images seem to bear no relation to reality whatsoever, leading to a corresponding proliferation of second-hand truth (2001 [1981: 173-4). Scholars like Manovich, Stephens, Castells, and Baudrillard all seem to point at the same phenomenon: something is going on in the daily lives of media users worldwide that makes them (us) accept the fact that reality is constructed, assembled and subverted by media, and that the only way to make sense of that mediated world is to adjust our worldview accordingly, which in turn shapes and renews the properties of media. Media are not changing our worldview, but the ways we engage with, make use of, and produce our own media are changing our values and practices and thus are changing our culture. Or, as Douglas Rushkoff reminds us: reality is open source. As screen-based, networked and digital media proliferate and saturate our lives, we reconstitute ourselves as active agents in the process of meaning-making (we are participants); we adopt but at the same time modify and manipulate the consensual way of understanding reality (we engage in distantiation); and we assemble our own particular versions of such reality (we become bricoleurs). It is this process that is central to my synthesis, and which in my mind defines our contemporary yet still emerging digital culture.

Digital culture is by no means only connected to or spawned by the convergence and omnipresence of devices, it is also reproduced by us as our perceptions of reality (or for lack of a better concept: authenticity) are evolving. I see this digital culture as emerging from practices and communicative acts both online and offline, shaping and being shaped by artifacts, arrangements and activities in new and old media (which distinction becomes superfluous as all media are converging). Seen as such, digital culture is an emergent convergence of previous media cultures: print culture (cf. newspapers, books and magazines), visual culture (cf. broadcast media), and information culture (cf. an analog and digital combination of display and research media). This presupposes digital culture carries some or all of the properties of other media cultures, so let me emphasize that I do not claim to have found characteristics unique or particular to digital culture. I would like to suggest that a digital culture has emerged from the mid-20th century onwards, which development accelerated through the widespread global proliferation of internet. The core characteristics of this digital culture can be caught in three concepts, wh

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With a worldwide growing interest in journalism and journalists came an upswing in cross-national survey research among journalists from the print and broadcast media in the last five years. Since 1994 a new type of communicator is on the World Wide Web: the online journalist. Research into online journalism and journalists has been understandably scarce - the medium is young. Those studies that do exist suffer from a kind of anachronistic approach: explaining the new by using the old. This paper offers a brief overview of the existing literature and makes some suggestions to develop a comprehensive research instrument for the online news environment that can both stand the test of time as well as offer researchers anywhere a model for cross-national research.

Contents
Introduction
Theory and Research
Writing on the Topic
Research Design
Research Context
Research Topic: The Newspaper
Research Projects
Suggestions for Descriptive and Normative Analysis of Online Newsmedia
Conclusion
References

Introduction

Content is King. Content is an important influence in setting the public agenda. Content determines to an extent the way we perceive the world around us. Journalists are responsible for the content of the media. Therefore journalists influence our agenda, which fully justifies an examination of these communicators - knowing who they are and why they do what they do. Yet communication researchers have shied away from journalists for a long time. With cross-national survey research among journalists from the print and broadcast media on the uprise (global overviews in Weaver, 1997; Patterson and Donsbach, 1996), a new type of communicator has arrived: the online journalist.

The Internet is both hype and reality; both an elitist playground of freaks and the ultimate synergy of communication-related phenomena. It is the network of networks, the only medium where access, abundance and citizenship blur the lines of the public and private sphere into chaos - but fascinating and - from time to time - highly relevant and important chaos.

Research into the role of journalists in this chaos is scarce. The development of research is marred by traditional concepts and the literature dealing with such issues is inevitably new and fragmented. This paper aims to bridge these gaps and to develop some suggestions on starting an effective, Net-wide research project into online journalism and journalists.

Theory and Research

The International Communication Association devoted an entire issue of its journal (Journal of Communication for Winter 1996) to the question "Why study the Internet?" - and basically came up with a single conclusion: to approach the medium in terms of its novelty, equipped with instruments such as established communication theories equals embarking upon a road headed for disaster (Newhagen and Rafaeli, 1996; Morris and Ogan, 1996). None of the authors mentioned online journalists in a research context. Some attention was paid to displacement theory, a common response to the advent of new media technology. Will the newspaper disappear with the rising popularity of television? Will traditional television disappear with personalized superior Webcasts and Web-TV? Questions such as these belong to the novelty theory - and are therefore a waste of time. The focus should be on understanding these new media, figuring out what they are made up with and who provides them with content. In other words: online news publications should be seen as journalistic products and analyzed as such. The foremost goal of communication researchers must be to provide insight and understanding - to make sense of all forms of communication.

Several journals are planning specials on the topic of online journalism; Convergence (1998), Journal of Computer-Mediated Communication (1998), Gazette (1999). Only one author, Jane Singer of the University of Colorado, has addressed issues related to research into online journalism and journalists explicitly (Singer, 1998). She tied a number of existing theoretical frameworks from the U.S.-based journalism research literature together. These gave her four possible approaches to journalism in the online environment: gatekeeping theory, diffusion of innovation theory, sociology of newswork theory and social cohesion theory. Although the author admitted that the best approach in the end is a multi-discplinary, wide-ranging one, she still did not succeed to escape from the problem that each of these theoretical concepts alone seems anachronistic; aiming to explain something which defies the rules and definitions that are part of the theory. There is also the problem of selection; Singer's sources are all American and therefore do little justice to the global nature of the research topic of online journalism.

Writing on the Topic: Trade Journals, Online Mags and Scholarly Publications

Publications on online journalism have appeared in trade journals, online magazines and scholarly journals. In trade journals, articles with titles such as "The future of online journalism" (Columbia Journalism Review, July/August 1997) are dominant. Although these articles are insightful, their conclusions are based on anecdotal evidence - "the Net is great, look what this radio station accomplished with their Website" - or opinions of technologists, focusing solely on engineering aspect of the medium - "look what can be done with ActiveX and streaming video".

Online sources and magazines - such as the CMC Magazine, AJR Newslink, Netly News, WebWeek, Newslink Network, CJR Online, Editor & Publisher Interactive - generally come up with specials and statistics, providing practical answers to issues concerning online journalism. These may include trends and figures, characteristics of online news ventures and the interplay between commercial and editorial content. No theoretical framework for analysis is given. The informal and fastpaced nature of the Web might not be the best possible platform for theoretical debate, but there lies the challenge for communication researchers aiming for relevance: to provide insight through clear communication aimed at an audience consisting of (online) journalists, technologists, scholars, students of new media and average Net users alike. With this in mind one has to point out that online publications were already putting out insightful and well-documented specials on Web journalism and its consequences as early as July 1995 (Lapham, 1995) and April 1996 (Fulton, 1996).

Scholarly journals are lagging behind. Research that has been done was aimed at redefining the role of the journalist under the influence of a perceived "information overload" by the Net (Bardoel, 1996; Singer, 1997), editorial and managerial policies of online newspapers (Harper, 1997; Singer, 1998) and inventarisation of journalists' responses to the development of their profession online (Singer, 1997 and 1998). Although these studies are all highly relevant, they seem to lack a contextual and historical foundation. They look at online newsmedia with a focus on assumed changes in the function and presentation of the traditional newspaper.

Research Design: Standing Alone

Although online journalism is still very young, research into the profession should be guided by the same notion that makes the Net a mass medium: its global nature. Evaluation of results from a single country makes more sense when compared with findings from other countries where the same research methodology was used (see, for example, Edelstein, 1982). The fact that exchange of datasets on the Net is extremely simple and reliable supports this argument. The replication of survey research for example could uncover general trends and/or nationally, locally or even culturally specific aspects of online newsmedia and the journalists involved.
Research Context: The Problem of Definition

Online journalism is of course just another form of journalism - and should be treated as such. The context of new media journalism is journalism, so any study on the topic should start with defining exactly what makes an online journalist. This does pose the researcher for several problems, since the debate in the literature has been on issues of definition for most of this century. In the most recent publications on journalists and journalism, scholars either decide not to go into issues of definition at all (this goes for all publications on online journalism up to date), or to replicate definitions used in survey research, such as the authoritative definition chosen by Weaver and Wilhoit in their 1982-1983 and 1992 surveys of American journalists. These surveys described the population under study as "... those who had responsibility for the preparation or transmission of news stories or other information - all full-time reporters, writers, correspondents, columnists, photojournalists, news people, and editors. In broadcast organizations, only those in news and public affairs departments were included."

This definition allowed the researchers to exclude free lancers, tabloid writers and editorial staff, talk show hosts, (comic strip) cartoonists, librarians, camera operators, and video/audio technicians from their study. Furthermore one misses the inclusion (in the operationalization of the definition) of online writers and journalists - those responsible for the Web content of newspapers, periodicals and broadcast organizations. In the 1971 and 1981/1982 studies this may seem more or less irrelevant, but with the explosive developments on the Internet a further definition for future reference is warranted. In replications of this study, the restriction to only full-time employees was abandoned and also picture desk staff, graphics operators and broadcast news producers were included (Henningham and Delano, 1995). In a contemporary study among students of journalism in 21 countries, considerable attention was paid to the question, why a clearcut definition of journalists or what makes a journalist has no answer in the international body of literature (Sparks and Splichal, 1994). The basic problem with a definition is the fact that journalism globally lacks the objective criteria which would place it in the same social position like medicine and law.

An answer to the question of what makes a journalist (occupation role of a journalist) can also be considered as a definition of the journalistic profession and in some recent studies this position has been adopted to avoid lengthy classifications (Karmasin, 1996). One problem here is that what makes a journalist can differ from news organization to news organization. The reference to a news organization has been put central in a different approach to defining the profession of a journalist in a sociological study (Beam, 1990). Here the author argues that a profession is an occupation in which members collectively (or rather: collegially) have secured authority to control the substance, performance and goals of their work. This means that a profession is not so much a general and distinct occupational group, but an organizational-level construct from within a news media organization. This approach may be valid, but is problematic when one wants to compare journalists in different countries and cultures, as is the intention of this research project. A possible solution to this problem is the general definition chosen by yet another transnational study into journalists done under the flag of the U.S.-based Mass Media and Democracy project. Here a journalist is defined as "a person who makes decisions directly affecting news content", further delimited by the criterion of participating in "daily news decisions about politics and public affairs" (Donsbach and Klett, 1993; Patterson and Donsbach, 1996).

Concluding this brief discussion of definition mention is made of the only definition, found in the literature, wherein the technological component of journalism is explicitly incorporated (Bardoel, 1997). Journalism is defined there as the professional selection of actual news facts to an audience by means of technological distribution methods. Especially in recent years the role of technology in effectively distributing media messages has changed and has taken center stage in the modern journalistic theater and should therefore serve as essential or even starting point of any scholarly venture into online journalism.
Research Topic: The Newspaper

A final point of critique has to be on the choice of research topic. Generally speaking, the little research that has been done was aimed at newspaper journalists or traditional print media journalism. The justification for this can possibly be traced to a number of attitudes towards the Net. First one could point out the fact that one perceives the 'threats' to the print versions of the profession as the most important aspect of the Net. Secondly, the historical nature of the newspaper business makes it the most logical topic for research. Thirdly, print journalism operates under a completely different set of rules - almost no rules rather - than the broadcast media industry (in most countries), which makes it a chaotic and thus challenging topic.

The essence of news publications on the Net is their integrated character: online journalism is the convergence of sound, image and text, Webcasting is the combination of all journalistic genres plus the advantage of push-pull technology and therefore justifies the choice for an integrated research approach. When studying online journalism, communicators from all "previous" genres of the profession should be considered as respondents. An online newspaper is not an example of newspaper journalism, but of integrated or perhaps 'total' journalism (Bardoel and Deuze, forthcoming).
Research Projects: Examples of Recent and Current Research Initiatives

There is a great need for communication among various efforts around the world to understand online journalism, in order to compare results in similar studies. Some perspectives about online media among newspapers journalists (Singer, 1997) - the enthusiastic and positive 'benevolent revolutionary', the negative or even scared 'nervous traditionalist' and the neutral 'rational realist' - render themselves perfectly for cross-national comparison. They need to be extended to cover journalists from all media in order to gain some understanding into how those responsible for the current development of the online profession perceive the medium - and their role in it.

There are other projects which lend themselves to replication and comparison cross-nationally though the Net. For example the Canadian Institute for New Media, Research and Development is currently running a project among their graduate students to develop a model for the online newspaper of the 21st century. At the Berkeley Graduate School for Journalism a project is establishing a new media historical archive for the benefit of media historians and scholars. At the Carleton University School of Journalism a project is on the way to develop an online interactive resource to explore the issues and information needs of print journalists, editors and publishers, containing an online style guide for writers and journalists. Several students internationally are conducting online journalism surveys, such as Kim Griggs at the Macquarie University in Sydney, Australia and Timo Luege at the Institut für Kommunikationswissenschaft in Munich, Germany. The Center for New Media of the Columbia School for Journalism is offering students opportunities to graduate as fully fledged online journalists, an effort which is also on the way at the Tilburg School for Journalism in the Netherlands. One might suggest that some of these educational institutions in could get together online to form a practical as well as theoretical 'think-tank' to develop a new curriculum for the profession.

Suggestions for Descriptive and Normative Analysis of Online Newsmedia

To end this brief essay on issues in research into online journalism and journalists, let me provide some remarks on the content of online news ventures. To make sense of what online content is made up of and to be able to classify this content - for evaluation, comparison and qualification - one needs a model or point of analytical departure. There are some examples and starting points available online for such a model, which are all used here (Zollman, 1997; Alexander and Tate, 1998; Rich, 1998). Below a possible model for descriptive analysis of content of online newsmedia is given.

In figure I a longitudinal descriptive way of analysis is suggested, meaning that it should be possible with a model like this in hand to not only classify a current or recent Web site, but also one that will be possible in the near future. Assume that a Web page consists of three core elements: content, layout and technology. A problem with this division is the interplay and interchangeability of these concepts. For instance, is a hyperlink layout (the way it is presented), technology (will the referring page use frames or alternate windows) or content (will the referred page be a substantial element of the story and where is the link inserted in the original body of text)? For this purpose, technology and layout should be used as limited categories. Simply, on the Net everything is content. Aspects of technology are also prone to change every couple of months due to the fast developments in the software and hardware industry, which allows for possible contemporary subdivisions (such as Java, ActiveX, DirectX, Shockwave) to be irrelevant in less than a year. Layout can be seen not so much as a description of traditional aspects such as font or colors (especially since browsers allow users to set their own preferences), but as a description of page length (scroll size) and the way in which all aspects of the content are scattered through the page and site, using a subcategory like 'non-linear writing'.

Describing content becomes a much more intricate process, since everything is content (following the line of reasoning that online journalism is total journalism: the integration of all other forms of journalism). A first division can obviously be made between (real) audio and (streaming) video and text. Within each of these categories one can make a distinction between factual and contextual content. Factual content is what the user directly sees, hears and reads. Contextual content goes a step further and answers questions about audio and video such as: does the supplied sound fragment stand on its own; is it the sound or image version of the text (both factual); or, is it a recording of a band for a review or a fragment of streetnoises or for a story (both contextual)? In terms of text contextual content are hyperlinks and other references to previous and alternate sources of content. Finally, a further subdivision can be made between editorial, advertorial and commercial content. This is one of the more hotly debated topics within online journalism and involves the credibility of the journalist in a medium where it is practically impossible to determine the reliability of sources (Koch, 1991; Reddick and King, 1996). By classifying content - where this is possible - into three categories without pretending that the lines between them cannot be blurred, one can determine whether a site's content is more commercial or editorial in nature.

This last point leans towards a normative approach towards content, meaning that one assumes pure editorial content to be (journalistically) superior to a mix between editorial and commercial content. A point must be made here that this author does not agree with that; 'advertorial' content is not necessarily of lesser quality. When reviewing the literature of this essay, one can find examples of what is seen as 'good' online journalism. These examples then can be used to set up a second, normative model of analysis.

Although most elements of this model may seem obvious or need no further elaboration for the daily Web surfer looking for a reliable news site, some remarks must be made. The importance given to 'original content' for instance comes from the general notion that the online newscast is a new medium and therefore requires original content instead of supplying the user with mere copies of its print version ('shovelware'). Though this may be a valid opinion, the underlying assumption - online newsmedia are just an arm of their respective print, television or radio bodies - can be criticized. One can wonder why this has to be the case, especially since more online news ventures are popping up without a print, television or radio as counterpart or single source (Driveway, After Dark Online, and Nando Times to name but a few in the U.S.). Elements such as 'reference material', 'resources', 'archive' and so on can be seen as the typical advantages of the Net. An online publication which does not make use of these elements, can be seen as not optimally using its possibilities. Several authors point out that the news story on the Net has to follow a whole new set of writing style guidelines or formulae. Although no single formula for the perfect online story has been developed, a 'good' online journalist must realize that the Net requires experiments with language and other style protocols (see Chris Lapham's Web site at http://www.lapham.com for some introductory guidelines; see also the comments made by Columbia's Center for New Media Coordinator Josh Schroeter in Pavlik, 1997).

Another qualitative aspect is the unique possibility of the Net to supply links to the story sources - since the user can check up on these sources themselves, why not helping them out? This way the journalist can establish credibility by pointing out how he/she got to the story - or selection of statements, facts and analysis - and possibly keep the audience by showing them that looking on their own takes more time than actually visiting the online journalists' site. Finally, with 'layers of content' a publication allows its original stories to be supplemented with other aspects of content in layered form (the user can navigate with the browsers' directional buttons), for original documents, transcripts of interviews, pictures or other graphical tools, background material and so on.
Conclusion

With the remarks, made in this essay, the author wants to put research into online journalism and journalists on the map, with the explicit goal of getting scholars and journalists alike together through the Net. The given models for analysis are meant for discussion - there is no claim to academic completeness. Without a critical, cross-national and open-minded approach, understanding and insight into the exciting but sometimes also elitist and freaky nature of the Net will be limited to a few enthusiasts or experts, instead of the millions the Net sets out to reach every day. As suggested in the body of literature, the journalist of the future will most likely be the one that makes sense of all the information that reaches our eyes and ears. To give these professionals something to go on is an acceptable, relevant and exciting prospect - especially for communication researchers.

About the Author

Mark Deuze is a Ph.D. student at the Amsterdam School of Communications Research (ASCoR), the Netherlands. This paper serves as a follow-up on a paper presented to the Napier University Journalism Conference of 4-5 September 1998 (Edinburgh, Scotland). The issues regarding journalism and the Internet form part of a larger research project into contemporary journalism in the Netherlands, a project which will run from 1997 to 2001. This project has four main themes: journalism in The Netherlands in terms of [1] an international comparative perspective, [2] the multicultural society, [3] infotainment and [4] the Internet. More information on the project can be found on the project's site. The author got his BA in Journalism at the Tilburg School for Journalism, the Netherlands and his M.Phil in History and Communication Studies at the Rand Afrikaans University in Johannesburg, South Africa.
E-mail: mark.deuze@reporters.net

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