February 27, 2005


Posted by stern130 at 8:21 PM

February 12, 2005

Griffis v Luban

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



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.


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

Young v New Haven Advocate

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No. 01-2340


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)


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.



[*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.


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]



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).


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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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).


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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


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.





[*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.



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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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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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.

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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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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.").

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[*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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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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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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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.


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Dow Jones & Company Inc v Gutnick
[2002] HCA 56 (10 December 2002)




Dow Jones & Company Inc v Gutnick

[2002] HCA 56

10 December 2002



Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria


G R Robertson QC with T F Robertson SC for the appellant (instructed by Gilbert & Tobin)

J L Sher QC with M F Wheelahan for the respondent (instructed by Schetzer, Brott & Appel)


B W Walker SC with S E Pritchard intervening on behalf of Amazon.com Inc & Ors (instructed by Blake Dawson Waldron)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.


Dow Jones & Company Inc v Gutnick

Torts - Defamation - Publication - Internet - Computer server - Material complained of housed on computer server in United States of America - Uploaded to World Wide Web - Viewable at subscription news site on World Wide Web - Downloaded to computer in Victoria - Whether material complained of was published in Victoria.

Torts - Defamation - Publication - Single publication rule.

Private international law - Choice of law - Law of the place of the tort (lex loci delicti) - Defamation - Damage to reputation - Where material complained of was published - Material complained of made comprehensible when downloaded in Victoria - Place of plaintiff's reputation - Victorian law governs substantive rights.

Private international law - Service out of jurisdiction - Rules of Court - Service permitted without leave of Court - Conditions of service - Action brought in respect of tort committed in Victoria - Action brought in respect of damage suffered in Victoria - Action limited to damage to reputation in Victoria - Service validly effected - Victoria a convenient forum.

Words and Phrases - "publication", "single publication rule".

Supreme Court (General Civil Procedure) Rules 1996 (Vic), rr 7.01(1)(i), 7.01(1)(j) and 7.05(2)(b).

1. GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. The appellant, Dow Jones & Company Inc ("Dow Jones"), prints and publishes the Wall Street Journal newspaper and Barron's magazine. Since 1996, Dow Jones has operated WSJ.com, a subscription news site on the World Wide Web. Those who pay an annual fee (set, at the times relevant to these proceedings, at $US59, or $US29 if they are subscribers to the printed editions of either the Wall Street Journal or Barron's) may have access to the information to be found at WSJ.com. Those who have not paid a subscription may also have access if they register, giving a user name and a password. The information at WSJ.com includes Barron's Online in which the text and pictures published in the current printed edition of Barron's magazine are reproduced.

2. The edition of Barron's Online for 28 October 2000 (and the equivalent edition of the magazine which bore the date 30 October 2000) contained an article entitled "Unholy Gains" in which several references were made to the respondent, Mr Joseph Gutnick. Mr Gutnick contends that part of the article defamed him. He has brought an action in the Supreme Court of Victoria against Dow Jones claiming damages for defamation. Mr Gutnick lives in Victoria. He has his business headquarters there. Although he conducts business outside Australia, including in the United States of America, and has made significant contributions to charities in the United States and Israel, much of his social and business life could be said to be focused in Victoria.

3. The originating process in the action which Mr Gutnick brought against Dow Jones was served on it outside Australia. The writ recorded that service was effected in reliance upon two of the provisions of the Supreme Court (General Civil Procedure) Rules 1996 (Vic) ("the Victorian Rules") (rr 7.01(1)(i) and 7.01(1)(j)) providing for service of process outside Australia. Under those Rules, the scheme of which is broadly similar to that considered in Agar v Hyde[1], a plaintiff may serve originating process without first obtaining the leave of the Court. If the defendant does not submit to the jurisdiction by filing an unconditional appearance, the plaintiff must obtain leave to proceed[2], demonstrating that the originating process makes claims of a kind which one or more of the paragraphs of r 7.01(1) mention. If the defendant wishes to contend that the Court should decline to exercise its jurisdiction or should set aside service, the defendant may enter a conditional appearance and apply for either or both of two forms of order - an order staying further proceedings in the matter or an order setting aside service of the originating process.

4. The principal issue debated in the appeal to this Court was where was the material of which Mr Gutnick complained published? Was it published in Victoria? The answer to these questions was said to affect, even determine, whether proceedings in the Supreme Court of Victoria should, as Dow Jones contended, be stayed on the ground that that Court was a clearly inappropriate forum for determination of the action[3]. The procedural steps which give rise to that issue can be described as follows.

The proceedings below

5. Dow Jones entered a conditional appearance to the process served upon it. It applied to a Judge of the Supreme Court of Victoria (Hedigan J) for an order that service of the writ and statement of claim be set aside or an order that further proceedings in the matter be permanently stayed.

6. In the course of the proceedings before the primary judge, Mr Gutnick proffered an undertaking to sue in no place other than Victoria in respect of the matters which founded his proceeding. The primary judge recorded in his reasons that Mr Gutnick "seeks to have his Victorian reputation vindicated by the courts of the State in which he lives [and that he] is indifferent to the other substantial parts of the article and desires only that the attack on his reputation in Victoria as a money-launderer should be repelled and his reputation re-established".

7. A deal of evidence was led before the primary judge seeking to establish the way in which, and the place at which, information found at a website like WSJ.com is published. It will be necessary to say something more about what that evidence revealed. His Honour concluded that the statements of which Mr Gutnick sought to complain were "published in the State of Victoria when downloaded by Dow Jones subscribers who had met Dow Jones's payment and performance conditions and by the use of their passwords". He rejected Dow Jones's contention that the publication of the article in Barron's Online occurred at the servers maintained by Dow Jones in New Jersey in the United States. Being therefore of the opinion that the defamation of which Mr Gutnick complained had occurred in Victoria, Hedigan J concluded that Victoria was not a clearly inappropriate forum for trial of the proceeding and dismissed Dow Jones's application.

8. Dow Jones sought leave to appeal to the Court of Appeal of Victoria but that Court (Buchanan JA and O'Bryan AJA) refused leave to appeal, holding that the decision at first instance was plainly correct. By special leave, Dow Jones now appeals to this Court. The appeal to this Court should be dismissed.

Undisputed principles

9. Argument of the appeal proceeded from an acceptance, by both parties, of certain principles. First, it is now established that an Australian court will decline, on the ground of forum non conveniens, to exercise jurisdiction which has been regularly invoked by a plaintiff, whether by personal service or under relevant long-arm jurisdiction provisions, only when it is shown that the forum whose jurisdiction is invoked by the plaintiff is clearly inappropriate[4]. Secondly, it is now established that in trying an action for tort in which the parties or the events have some connection with a jurisdiction outside Australia, the choice of law rule to be applied is that matters of substance are governed by the law of the place of commission of the tort[5]. Neither party sought to challenge either proposition. Rather, argument focused upon where was the place of publication of the statements of which Mr Gutnick complained. Dow Jones contended that the statements were published in New Jersey and that it was, therefore, the law of that jurisdiction which would govern all questions of substance in the proceeding. This was said to have two consequences: first, that the claims made in the originating process were not of a kind mentioned in any of the relevant paragraphs of r 7.01(1) of the Victorian Rules and, secondly, that because the law governing questions of substance was not Victorian law, Victoria was a clearly inappropriate forum for the trial of the proceeding.

"Jurisdiction" and "publishing"

10. Two of the terms that must be used in considering the questions that arise in this matter are terms that can give rise to difficulty. "Jurisdiction", as was pointed out in Lipohar v The Queen[6], is a generic term[7] that is used in a variety of senses. In the present matter there are two distinct senses in which it is used - first, as referring to the amenability of a defendant to process in such a way as will give a court authority to decide the controversy which that process seeks to agitate and, secondly, as referring to a particular territorial or law area or law district.

11. "Publishing" and its cognate words is also a term that gives rise to difficulty. As counsel for the interveners pointed out it may be useful, when considering where something is published to distinguish between the (publisher's) act of publication and the fact of publication (to a third party), but even that distinction may not suffice to reveal all the considerations relevant to locating the place of the tort of defamation.


12. Since so much was made in argument, both in this Court and in the courts below, of what was said to be the unusual features of publication on the Internet and the World Wide Web, it is necessary to say something about what the evidence revealed about those matters.

13. For present purposes, it is convenient to adopt what was said in that evidence without diverting to consider what qualification to, or amplification of, that evidence might be necessary to give a complete and entirely accurate description of the Internet or the World Wide Web. (There was, for example, no evidence adduced that revealed what electronic impulses pass or what electronic events happen in the course of passing or storing information on the Internet.)

14. One witness called by Dow Jones, Dr Clarke, described the Internet as "a telecommunications network that links other telecommunication networks". In his opinion, it is unlike any technology that has preceded it. The key differences identified by Dr Clarke included that the Internet "enables inter-communication using multiple data-formats ... among an unprecedented number of people using an unprecedented number of devices [and] among people and devices without geographic limitation".

15. The World Wide Web is but one particular service available over the Internet. It enables a document to be stored in such a way on one computer connected to the Internet that a person using another computer connected to the Internet can request and receive a copy of the document. As Dr Clarke said, the terms conventionally used to refer to the materials that are transmitted in this way are a "document" or a "web page" and a collection of web pages is usually referred to as a "web site". A computer that makes documents available runs software that is referred to as a "web server"; a computer that requests and receives documents runs software that is referred to as a "web browser".

16. The originator of a document wishing to make it available on the World Wide Web arranges for it to be placed in a storage area managed by a web server. This process is conventionally referred to as "uploading". A person wishing to have access to that document must issue a request to the relevant server nominating the location of the web page identified by its "uniform resource locator (URL)". When the server delivers the document in response to the request the process is conventionally referred to as "downloading".

17. Dow Jones has its editorial offices for Barron's, Barron's Online and WSJ.com in the city of New York. Material for publication in Barron's or Barron's Online, once prepared by its author, is transferred to a computer located in the editorial offices in New York city. From there it is transferred either directly to computers at Dow Jones's premises at South Brunswick, New Jersey, or via an intermediate site operated by Dow Jones at Harborside, New Jersey. It is then loaded onto six servers maintained by Dow Jones at its South Brunswick premises.

Dow Jones's contention

18. The principal burden of the argument advanced by Dow Jones on the hearing of the appeal in this Court was that articles published on Barron's Online were published in South Brunswick, New Jersey, when they became available on the servers which it maintained at that place.

19. In the courts below, much weight appears to have been placed by Dow Jones on the contention that a relevant distinction was to be drawn between the apparently passive role played by a person placing material on a web server from which the would-be reader had actively to seek the material by use of a web browser and the (comparatively) active role played by a publisher of a widely circulated newspaper or a widely disseminated radio or television broadcast. In this Court, these arguments, though not abandoned, were given less prominence than policy arguments based on what was said to be the desirability of there being but a single law governing the conduct of a person who chooses to make material available on the World Wide Web.

20. Dow Jones submitted that it was preferable that the publisher of material on the World Wide Web be able to govern its conduct according only to the law of the place where it maintained its web servers, unless that place was merely adventitious or opportunistic. Those who, by leave, intervened in support of Dow Jones[8] generally supported this contention. The alternative, so the argument went, was that a publisher would be bound to take account of the law of every country on earth, for there were no boundaries which a publisher could effectively draw to prevent anyone, anywhere, downloading the information it put on its web server[9].

21. The rule propounded by Dow Jones may have a greater appearance of certainty than it would have in fact. "Adventitious" and "opportunistic" are words likely to produce considerable debate. Does a publisher's decision to have a server in a country where the costs of operation are low, or the benefits offered for setting up business are high, warrant either of these descriptions? Does a publisher's decision to have servers in two, widely separated, states or even countries warrant either description, or is it simply a prudent business decision to provide security and continuity of service? How is the user to know which server dealt with a particular request? Is the fact that one rather than the other server met the request "adventitious"?

22. To the extent that the suggested rule would require reference only to the law of the place in which the server is located, it is a rule that would evidently be convenient to the party putting material on a web server. But that does not conclude debate. The convenience of one party is important to it, but how would such a rule fit with other, no less relevant, considerations? In particular, how would it fit with the nature of the competing rights and interests which an action for defamation must accommodate?

23. It is necessary to begin by making the obvious point that the law of defamation seeks to strike a balance between, on the one hand, society's interest in freedom of speech and the free exchange of information and ideas (whether or not that information and those ideas find favour with any particular part of society) and, on the other hand, an individual's interest in maintaining his or her reputation in society free from unwarranted slur or damage. The way in which those interests are balanced differs from society to society. In some cases, for example as between the States in Australia, the differences in substantive law might be said to be differences of detail rather than substance, although even then it may be doubted that this is an accurate characterisation of the effect of the differences in the defamation laws of the Australian States. Whether or not that is so, comparing the law of defamation in different countries can reveal differences going well beyond matters of detail lying at the edge of debate.

24. It follows that identifying the law which is to govern questions of substance, in an action for defamation where there is some foreign element, may have substantial consequences for the resolution of the proceeding. No less importantly, those who would seek to order their affairs in a way that will minimise the chance of being sued for defamation must be able to be confident in predicting what law will govern their conduct. But certainty does not necessarily mean singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their "home" legal system. Activities that have effects beyond the jurisdiction in which they are done may properly be the concern of the legal systems in each place. In considering where the tort of defamation occurs it is important to recognise the purposes served by the law regarding the conduct as tortious: purposes that are not confined to regulating publishers any more than they are confined to promoting free speech.


25. The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputation. It is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care[10]. Yet a publication made in the ordinary course of a business such as that of bookseller or news vendor, which the defendant shows to have been made in circumstances where the defendant did not know or suspect and, using reasonable diligence, would not have known or suspected was defamatory, will be held not to amount to publication of a libel[11]. There is, nonetheless, obvious force in pointing to the need for the publisher to be able to identify, in advance, by what law of defamation the publication may be judged. But it is a tort concerned with damage to reputation and it is that damage which founds the cause of action. Perhaps, as Pollock said in 1887[12], the law went "wrong from the beginning in making the damage and not the insult the cause of action" for slander but it is now too late to deny that damage by publication is the focus of the law. "It is the publication, not the composition of a libel, which is the actionable wrong."[13]

26. Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.

27. The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action[14]. That rule has found reflection from time to time in various ways in State legislation[15] and it would be a large step now to depart from it.

28. If the place in which the publisher acts and the place in which the publication is presented in comprehensible form are in two different jurisdictions, where is the tort of defamation committed? That question is not to be answered by an uncritical application of some general rule that intentional torts are committed where the tortfeasor acts[16] or that they are committed in the place where the last event necessary to make the actor liable takes place[17]. Nor does it require an uncritical adoption of what has come to be known in the United States as the "single publication" rule, a rule which has been rejected by the Court of Appeal of New South Wales in McLean v David Syme & Co Ltd[18].

Single publication rule

29. Some 27 States of the United States, including California, Illinois, New York, Pennsylvania and Texas, by legislation[19] or by judicial decision have adopted what is identified as the single publication rule[20]. That rule is set out in §577A of the Restatement of Torts, 2d, (1977), which is headed "Single and Multiple Publications", and reads:

"(1) Except as stated in Subsections (2) and (3), each of several communications to a third person by the same defamer is a separate publication.

(2) A single communication heard at the same time by two or more third persons is a single publication.

(3) Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.

(4) As to any single publication,

(a) only one action for damages can be maintained;

(b) all damages suffered in all jurisdictions can be recovered in the one action; and

(c) a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions."

30. In Firth v State of New York[21], the New York Court of Appeals decided that the one-year statute of limitation in New York runs from the first posting of defamatory matter upon an Internet site and that the single publication rule applies to that first posting.

31. To trace, comprehensively, the origins of the so-called single publication rule, as it has come to be understood in the United States, may neither be possible nor productive. It is, however, useful to notice some of the more important steps that have been taken in its development. Treating each sale of a defamatory book or newspaper as a separate publication giving rise to a separate cause of action might be thought to present difficulties of pleading and proof. Following early English authority holding that separate counts alleging each sale need not be pleaded in the declaration[22], American courts accepted that, where the defamatory matter was published in a book or newspaper, each publication need not be pleaded separately[23]. Similarly, proof of general distribution of a newspaper was accepted as sufficient proof of there having been a number of separate publications. It was against this background that there emerged, at least in some American States by the late nineteenth century, the rule that a plaintiff could bring only one action against a defendant to recover damages for all the publications that had by then been made of an offending publication[24]. The expression "one publication" or, later, "single publication" was first commonly used in this context[25].

32. In the early decades of the twentieth century, the single publication rule came to be coupled with statements to the effect that the place of that single publication was the place where the newspaper or magazine was published[26]. The source of this added proposition was given as a case of prosecution for criminal libel[27] where the question was that raised by the Sixth Amendment to the United States Constitution and its reference to the "state or district wherein the crime shall have been committed". Despite this difference in the context in which the question of location arose, the statement that the place of publication was where the newspaper or magazine was published was sometimes taken as stating an element of (or at least a consequence of) the single publication rule applied to civil defamation suits[28].

33. This single publication rule was understood as having consequences for the application of statutes of limitation which, in many States in the United States, provided only a short time before action for defamation was statute barred[29]. The time of the "single publication" was fixed as the time of the first publication[30], it being thought that "[I]f the bar of the statute of limitations can be lifted by [later sales] we may no longer term it a 'statute of repose' which makes effective a purpose which the Legislature has conceived to be imperative"[31].

34. It was not until the middle of the twentieth century and the advent of widely disseminated mass media of communication (radio and nationally distributed newspapers and magazines) that choice of law problems were identified. In some cases, the law of the forum was applied without any explicit recognition of the possible application of some other law[32]. But then, by a process of what was understood as logical extension of the single publication rule, the choice of law to be applied came to be understood as largely affected by[33], perhaps even to be determined by[34], the proposition that only one action could be brought in respect of the alleged defamation, and that the place of publication was where the person publishing the words had acted.

35. For present purposes, what it is important to notice is that what began as a term describing a rule that all causes of action for widely circulated defamation should be litigated in one trial, and that each publication need not be separately pleaded and proved, came to be understood as affecting, even determining, the choice of law to be applied in deciding the action. To reason in that way confuses two separate questions: one about how to prevent multiplicity of suits and vexation of parties, and the other about what law must be applied to determine substantive questions arising in an action in which there are foreign elements[35].

36. Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata[36], issue estoppel[37], and what has come to be known as Anshun estoppel[38], all find their roots in that policy. The application of that policy to cases in which the plaintiff complains about the publication of defamatory material to many people in many places may well lead to the conclusion that a plaintiff may not bring more than one action in respect of any of those publications that have occurred before the proceeding is instituted or even, perhaps, before trial of the proceeding is complete. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits[39] or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel. Conversely, where a plaintiff brings one action, account can properly be taken of the fact that there have been publications outside the jurisdiction and it would be open to the defendant to raise, and rely on, any benefit it may seek to say flows from applicable foreign law[40]. If some of the publications of which complaint is or could be made are publications that have occurred outside Australia, or if action has been instituted outside Australia in respect of publications made in this country, or overseas, there is no evident reason why the questions thus presented are not to be answered according to the established principles just mentioned. The application of these principles, however, says nothing about questions of jurisdiction or choice of law. In particular, the application of these principles does not require that a single place of publication be identified in every defamation case no matter how widely the defamatory material is disseminated.

37. Publications within Australia, but in different States or Territories, may require consideration of additional principles. Although the choice of law to be made in such a case is again the law of the place of the tort[41], questions of full faith and credit[42] or other constitutional questions[43] may well arise. It is unnecessary to pursue those matters further at the moment and we return to cases in which there are international rather than solely intranational aspects.

Widely disseminated publications

38. In the course of argument much emphasis was given to the fact that the advent of the World Wide Web is a considerable technological advance. So it is. But the problem of widely disseminated communications is much older than the Internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem as was presented by widespread dissemination of printed material, although international transmission of material was made easier by the advent of electronic means of communication.

39. It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television and it may, therefore, be doubted that it is right to say that the World Wide Web has a uniquely broad reach. It is no more or less ubiquitous than some television services. In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact. However broad may be the reach of any particular means of communication, those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction.

40. Because publication is an act or event to which there are at least two parties, the publisher and a person to whom material is published, publication to numerous persons may have as many territorial connections as there are those to whom particular words are published. It is only if one starts from a premise that the publication of particular words is necessarily a singular event which is to be located by reference only to the conduct of the publisher that it would be right to attach no significance to the territorial connections provided by the several places in which the publication is available for comprehension.

41. Other territorial connections may also be identified. In the present case, Dow Jones began the process of making material available at WSJ.com by transmitting it from a computer located in New York city. For all that is known, the author of the article may have composed it in another State. Dow Jones is a Delaware corporation. Consideration has been given to these and indeed other bases of territorial connection in identifying the law that might properly be held to govern an action for defamation where the applicable choice of law rule was what came to be known as the proper law of the tort[44].

42. Many of these territorial connections are irrelevant to the inquiry which the Australian common law choice of law rule requires by its reference to the law of the place of the tort. In that context, it is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action) that require rejection of Dow Jones's contention that publication is necessarily a singular event located by reference only to the publisher's conduct. Australian common law choice of law rules do not require locating the place of publication of defamatory material as being necessarily, and only, the place of the publisher's conduct (in this case, being Dow Jones uploading the allegedly defamatory material onto its servers in New Jersey).

43. Reference to decisions such as Jackson v Spittall[45], Distillers Co (Biochemicals) Ltd v Thompson[46] and Voth v Manildra Flour Mills Pty Ltd[47] show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is "where in substance did this cause of action arise"[48]? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt[49].

44. In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.

Set aside service or stay proceedings?

45. It is convenient to deal at this point with Dow Jones's contentions that service of the originating process in the proceeding brought by Mr Gutnick should be set aside, and that further proceedings should be stayed on the ground that Victoria was a clearly inappropriate forum for trial of the action.

46. Rule 7.01(1) of the Victorian Rules provided that:

"(1) Originating process may be served out of Australia without order of the Court where -


(i) the proceeding is founded on a tort committed within Victoria;

(j) the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring".

Because Mr Gutnick alleged that he suffered damage in Victoria as a result of the publication made in Victoria when the Barron's Online article was comprehensible to a reader, r 7.01(1)(j) was plainly engaged. Mr Gutnick's proceeding was brought in respect of damage alleged to have been suffered at least partly in Victoria and alleged to have been caused by a tortious act or omission. As r 7.01(1)(j) makes plain, that paragraph of the rule has operation wherever the tortious act or omission is alleged to have occurred.

47. It matters not, in this case, whether par (i) of the rule applied. It follows from the fact that par (j) was satisfied that the jurisdiction of the Supreme Court of Victoria was regularly invoked by service of the proceeding on Dow Jones. Was Victoria, nevertheless, a clearly inappropriate forum? Dow Jones contended that Victoria was a clearly inappropriate forum because the substantive issues to be tried would be governed by the laws of one of the States of the United States. Although reluctant, at first, to identify whether the state whose laws applied was New Jersey or New York, in the end Dow Jones submitted that the defamation had occurred in New Jersey and that the substantive issues in the proceeding were, therefore, to be governed by the law of that State.

48. As has been noted earlier, Mr Gutnick has sought to confine his claim in the Supreme Court of Victoria to the damage he alleges was caused to his reputation in Victoria as a consequence of the publication that occurred in that State. The place of commission of the tort for which Mr Gutnick sues is then readily located as Victoria. That is where the damage to his reputation of which he complains in this action is alleged to have occurred, for it is there that the publications of which he complains were comprehensible by readers. It is his reputation in that State, and only that State, which he seeks to vindicate. It follows, of course, that substantive issues arising in the action would fall to be determined according to the law of Victoria. But it also follows that Mr Gutnick's claim was thereafter a claim for damages for a tort committed in Victoria, not a claim for damages for a tort committed outside the jurisdiction. There is no reason to conclude that the primary judge erred in the exercise of his discretion to refuse to stay the proceeding.

Actions for publications in several places

49. More difficult questions may arise if complaint were to be made for an injury to reputation which is said to have occurred as a result of publications of defamatory material in a number of places. For the reasons given earlier, in resolving those difficulties, it may be necessary to distinguish between cases where the complaint is confined to publications made in Australia, but in different States and Territories, and cases where publication is alleged to have occurred outside Australia, either with or without publication within Australia. Several kinds of difficulty may arise and each requires separate identification and consideration, even if the treatment of one may have consequences for some other aspect of the matter.

50. First, there may be some question whether the forum chosen by the plaintiff is clearly inappropriate. If there is more than one action brought, questions of vexation may arise and be litigated either by application for stay of proceedings or application for anti-suit injunction.

51. Secondly, a case in which it is alleged that the publisher's conduct has all occurred outside the jurisdiction of the forum may invite attention to whether the reasonableness of the publisher's conduct should be given any significance in deciding whether it has a defence to the claim made. In particular, it may invite attention to whether the reasonableness of the publisher's conduct should be judged according to all the circumstances relevant to its conduct, including where that conduct took place, and what rules about defamation applied in that place or those places. Consideration of those issues may suggest that some development of the common law defences in defamation is necessary or appropriate to recognise that the publisher may have acted reasonably before publishing the material of which complaint is made[50]. Some comparison might be made in this regard with the common law developing by recognising a defence of innocent dissemination to deal with the position of the vendor of a newspaper and to respond to the emergence of new arrangements for disseminating information like the circulating library[51].

52. In considering any of these matters, it should go without saying that it is of the first importance to identify the precise difficulty that must be addressed. In particular, in cases where the publisher of material which is said to be defamatory has acted in one or more of the United States, any action that is brought in an Australian court in respect of publications that were made in America, would, in applying the law of the place of commission of the tort, have to give effect to the rather different balance that has been struck in the United States between freedom of speech and the individual's interest in reputation. Furthermore, it may well be that the resolution of a claim for publications made in one or more of the United States would be affected by the application by the law of the relevant state of a form of the single publication rule.

53. Three other matters should be mentioned. In considering what further development of the common law defences to defamation may be thought desirable, due weight must be given to the fact that a claim for damage to reputation will warrant an award of substantial damages only if the plaintiff has a reputation in the place where the publication is made. Further, plaintiffs are unlikely to sue for defamation published outside the forum unless a judgment obtained in the action would be of real value to the plaintiff. The value that a judgment would have may be much affected by whether it can be enforced in a place where the defendant has assets[52].

54. Finally, if the two considerations just mentioned are not thought to limit the scale of the problem confronting those who would make information available on the World Wide Web, the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort.

55. The appeal should be dismissed with costs.

56. GAUDRON J. I agree with Gleeson CJ, McHugh, Gummow and Hayne JJ, for the reasons their Honours give, that the appeal in this matter should be dismissed. I also agree with their Honours' observations under the heading "Actions for publications in several places". In respect of one aspect of those observations, I would wish to add some comments of my own.

57. Much of the argument in the present case was concerned with the possibility of several actions being brought in several different jurisdictions in respect of the same defamatory matter. Seemingly, it was to overcome that possibility that the "single publication" rule was adopted in several of the American States. That rule has been described as "a legal fiction which deems a widely disseminated communication ... to be a single communication regardless of the number of people to whom, or the number of states in which, it is circulated."[53]

58. It may be accurate to apply the description "legal fiction" to a rule that deems multiple publications to be a single publication. However, it is not apparent that the single publication rule set out in § 577A of the Restatement of Torts, 2d, (1977) deems that to be the case. Rather, as stated, the rule selects "single publication" as a device to define the circumstances in which a plaintiff can be prevented from bringing more than one action.

59. For many years it has been usual in this country for defamation plaintiffs to bring a single action in respect of nationwide or multi-state publications. Gorton v Australian Broadcasting Commission[54] is an example of that practice. In an action of that kind, the ordinary choice of law rules apply so that, in respect of each State or Territory in which the material was published, it is open to the parties to rely on the law of that State or Territory[55].

60. It may be that the practice exemplified in Gorton v Australian Broadcasting Commission is not simply a practice but the necessary consequence of the principle that underlies the decision in Port of Melbourne Authority v Anshun Pty Ltd[56]. In that case it was held that the Port of Melbourne Authority was estopped from maintaining a separate action under a contract of indemnity by reason that the claim for indemnity could have been pursued in earlier proceedings brought by an injured workman against the parties to the contract and, in which proceedings, the contracting parties claimed contribution against each other as tortfeasors.

61. In Anshun, the estoppel was said to arise, not because of res judicata or issue estoppel[57], as those concepts are traditionally understood, but because the claim for indemnity was "a defence to [the] claim [for contribution] in the first action ... [and] so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery"[58]. In this regard, the estoppel was seen to be an aspect of "the extended principle expressed by Sir James Wigram VC in Henderson v Henderson[59]"[60].

62. It was said in Henderson v Henderson that:

"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case."[61]

63. For present purposes, it is unnecessary to explore the circumstances in which an estoppel will be held to arise in consequence of a failure to raise a matter in earlier proceedings. Rather, it is important to note that the principle as stated in Henderson v Henderson stems from the nature of judicial power. The purpose of judicial power is the final determination of justiciable controversies and such controversies are not finally determined unless all issues involved in a controversy are submitted for determination or, if they are not, are treated as no longer in issue.

64. If a plaintiff complains of multiple and simultaneous publications by a defendant of the same defamatory matter there is, in essence, a single controversy between them, notwithstanding that the plaintiff may have several causes of action governed by the laws of different jurisdictions. Accordingly, if, in such a case, an issue arises as to whether an Australian court is a clearly inappropriate forum[62], a very significant consideration will be whether that court can determine the whole controversy and, if it cannot, whether the whole controversy can be determined by a court of another jurisdiction.

65. As the respondent has limited his controversy with the appellant to the publication of defamatory matter in Victoria, the controversy is one that can be determined in its entirety by the Supreme Court of that State and there can be no question of multiple suits in different jurisdictions.

66. KIRBY J. Lord Bingham of Cornhill recently wrote that, in its impact on the law of defamation, the Internet will require "almost every concept and rule in the field ... to be reconsidered in the light of this unique medium of instant worldwide communication."[63] This appeal enlivens such a reconsideration.

67. The facts are set out in other reasons[64]. Essentially, Dow Jones & Company Inc, a corporation registered in the United States of America ("the appellant"), published material on the Internet that was allegedly defamatory of Mr Gutnick ("the respondent") who sued in the Supreme Court of Victoria to recover damages to vindicate his reputation.

The issues of jurisdiction, applicable law and forum

68. History of the proceedings: Hedigan J ("the primary judge") dismissed a summons by which the appellant had sought an order for the stay or dismissal of proceedings brought against it by the respondent[65]. This appeal comes from the refusal of the Court of Appeal of the Supreme Court of Victoria[66] to grant leave to the appellant to appeal from the judgment of the primary judge. The Court of Appeal concluded that the decision was not attended by sufficient doubt to warrant its intervention[67]. It confirmed the judgment of the primary judge. The attention of this Court has therefore been addressed to that judge's reasons.

69. Three issues: The appeal concerns issues that commonly arise where a non-resident foreign party seeks a stay, or the setting aside, of process that brings it involuntarily before an Australian court[68]:

(1) The jurisdiction of the Australian court to decide the action;

(2) If jurisdiction exists, the law that will apply, in accordance with the principles of private international law, in the exercise of such jurisdiction; and

(3) Having regard to the resolution of those questions, whether the proceedings should be stayed, or the process set aside, on the ground that the Australian jurisdiction selected by the plaintiff is an inconvenient forum when compared to another jurisdiction propounded by the resisting party.

70. The arguments of the parties: Although these three issues are separate and distinct, they are closely related. One vital question, relevant to the answer to each issue, is where the cause of action, identified by the respondent, arose. The respondent sues for defamation by the appellant. He submits that the essential elements of the tort of defamation are: (1) publication; (2) in a form comprehended by a third party; (3) causing damage to the plaintiff which, in the case of proof of publication of defamatory matter, is presumed[69]. Upon this basis the respondent asserts that his proceedings were "founded on a tort committed within Victoria"[70].

71. If Victoria is identified as the place of the tort, that finding would provide a strong foundation to support the jurisdiction of the Supreme Court of Victoria[71]; and to sustain a conclusion that the law to be applied to the proceedings, as framed[72], is the law of Victoria. These conclusions would, in turn, provide the respondent with powerful arguments to resist the contention that the proceedings should be stayed, or set aside, on inconvenient forum grounds[73].

72. It is unsurprising that the thrust of the appellant's argument was that this Court should re-examine the common law of defamation in Australia so as to reformulate its elements, either generally or specifically, for the law as it applies to publication on the Internet. In particular, the appellant urged this Court to re-express the common law so as to abolish the "primitive" rule[74], that every publication of defamatory material constitutes a new and separate tort[75]. At least in respect of publications appearing on the Internet, the appellant submitted that the Court should express the common law to treat defamation as "one global tort (rather than a multiple wrong committed by every single publication and every internet hit)"[76].

73. If the common law were re-expressed in this way, the appellant's argument proceeded, the "publication" in this case had occurred, and the tort had been completed, in the United States. Specifically, this had occurred in the State of New Jersey where the matter complained of was uploaded on the appellant's website or in the State of New York where it was composed and finally edited.

74. Practical considerations: Behind these arguments of legal authority, principle and policy lay the forensic advantages perceived by the respective parties. That is not unusual. Nor is it in any way reprehensible[77]. But it should be recognised at the outset. The respondent was entitled to regard the law of defamation in Victoria as more favourable to his interests than the law in the United States. The latter is greatly influenced by the jurisprudence of the First Amendment to the Constitution of that country[78]. That jurisprudence is more favourable to the appellant[79]. The jockeying over the issues in this appeal is thus not concerned only with large questions of law. For the parties, the stakes are more basic and more urgent.

Reformulation of the common law of Australia

75. Reasons for restraint: The responsibilities of this Court extend to the re-expression of the common law of Australia. However, the Court is bound by the Constitution. No principle of the common law may be inconsistent with its language or implications[80]. Nor may the common law be inconsistent with valid applicable legislation, whether federal, State or of a Territory[81]. In re-expressing the common law from time to time, regard may be had to the general developments of statute law[82].

76. Sometimes, asked to reformulate an established principle of the common law, this Court will decline the invitation, considering that any alteration of the law should be left to the legislature. Factors relevant to such decisions have included the effect on competing interests that should be consulted before any alteration of the law[83]; the existence of significant economic implications of any change[84]; the enactment of legislation evidencing parliamentary attention to the subject[85]; the perceived undesirability of imposing retrospective liability, especially criminal liability, on persons[86]; and the desirability, in particular cases, of not making any change until after intensive analysis of social data and public consultation, facilities typically unavailable to a court[87]. The fundamental restraint upon substantial judicial innovation in the expression of the law is imposed by the character of a court's functions as such and an acceptance that, under the Constitution, major legal changes in the Australian Commonwealth are the responsibility of the other branches of government, not of the courts[88].

77. Reasons for action: Despite these expressions of restraint, important reformulations of the common law have been made by this Court, including in recent times[89]. Some of these have had very great significance. They have reversed long held notions of common law principle. Sometimes they have been stimulated by contemporary perceptions of the requirements of fundamental human rights[90]. In the present case, in support of its arguments, the appellant invoked the "revolutionary" features of the technology that supplies the Internet. It submitted that those features permitted, and required, a reconsideration of the law governing the elements of the tort of defamation.

The features of the Internet and the World Wide Web

78. The Internet: The history of the Internet, its ubiquity, universality and utility have been described in the reasons of many courts in the United Kingdom[91], the United States[92], Canada[93], Australia[94] and elsewhere[95]. In the expert evidence before the primary judge in this case, there was no relevant dispute about the main features of the Internet and of the World Wide Web specifically. Some additional evidence relevant to those features was placed before this Court, without objection, in support of the application of a number of organisations which were granted leave to intervene[96]. Although the supporting affidavits were not part of the record in the appeal, and cannot be so treated[97], most of the features of the Internet there described confirm the evidence given at trial. They are, in any case, readily ascertainable from standard works that describe the Internet's basic elements.

79. It is important to consider these features because they afford the foothold for the appellant's argument that the Internet is such a new and different medium of human communication that it demands a radical reconceptualisation of the applicable common law, specifically with respect to the tort of defamation.

80. It has been estimated that, by the end of 2002, the number of Internet users will reach 655 million[98]. The number continues to grow exponentially. It is estimated that in some countries, the number of users doubles every six months[99]. The Internet is essentially a decentralised, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term "cyberspace"[100]. This is a word that recognises that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.

81. The World Wide Web: The Web is a forum consisting of millions of individual "sites". Each site contains information provided by, or to, the creator of that site. When a publisher of information and opinion wishes to make its content available on the Web, it commonly does so by creating a "website" and "posting" information to that site. Such a website is a collection of electronic messages maintained on a type of computer known as a "web server". Typically, this is controlled either by the publisher concerned or by a third party contracted by the publisher to provide "web hosting" services.

82. An Internet user may access the information maintained on a website provided the user knows, or can ascertain, the Internet address of the relevant website. By entering that address into the user's web browser, the user will be directed to that website. Once the user locates the website in this way, the user may be required to take additional steps to access information stored on the web server associated with the website. Thus, to post an article to a website, a publisher must prepare a version in digital (computer readable) format. Such an article becomes part of the digital collection of data known as a web page. Such a web page is transmitted to a web server. It, along with the other web pages, comprises the website.

83. By posting information on a website, the publisher makes the content available to anyone, anywhere, having access to the Web. However, accessibility will depend on whether there is open access (under which any web user can access the site); subscription access (under which only web users who register, and commonly pay, for the service can secure access); combination access (where only a portion of a site may be accessed after registration and/or payment of a fee) and restricted access (access limited to specified users authorised by the website operator to view the website, eg employees of a particular company).

84. Difficulty of controlling access: The nature of the Web makes it impossible to ensure with complete effectiveness the isolation of any geographic area on the Earth's surface from access to a particular website. Visitors to a website automatically reveal their Internet Provider ("IP") address. This is a numerical code that identifies every computer that logs onto the Internet. The visitor may also disclose certain information about the type of browser and computer that the visitor uses. The IP addresses of users are generally assigned to them by an Internet Service Provider ("ISP"). The user's IP address will remain the same whenever and wherever the user "surfs" the Web. But some ISPs do not assign a permanent IP address. Instead, they assign a new IP address every time a user logs onto the Web. Because of these features, there is presently no effective way for a website operator to determine, in every case, the geographic origin of the Internet user seeking access to the website.

85. For similar reasons, with respect to subscription accounts, checking the issuing location of a credit card provided by a user would not afford a universally reliable means of ascertaining the geographic location of a user seeking access to a website. Thus, even assuming that a geographic restriction could be introduced isolating Australia (and hence Victoria) by reference to the origin of the visitor's credit card, a resident of Australia with a credit card issued by a United States bank, would be able to access sites that might be denied to an Australian resident with an Australian credit card, although both users were physically located in Australia.

86. In addition to these difficulties of controlling access to a website by reference to geographic, national and subnational boundaries, the Internet has recently witnessed a rapid growth of technologies ("anonymising technologies") that enable Internet users to mask their identities (and locations). By reason of these developments, the provision of cost effective, practical and reliable identity verification systems, that could afford a universally reliable recognition of the point of origin of an Internet user, has not emerged. This is why the nature of Internet technology itself makes it virtually impossible, or prohibitively difficult, cumbersome and costly, to prevent the content of a given website from being accessed in specific legal jurisdictions when an Internet user in such jurisdictions seeks to do so. In effect, once information is posted on the Internet, it is usually accessible to all Internet users everywhere in the world. Even if the correct jurisdiction of an Internet user could be ascertained accurately, there is presently no adequate technology that would enable non-subscription content providers to isolate and exclude all access to all users in specified jurisdictions.

87. These special features of the Internet present peculiar difficulties for the legal regulation of its content and, specifically, for the exclusion of access in defined jurisdictions. Such difficulties may have a bearing on the question of whether a particular jurisdiction has an advantage in regulating content published and accessed on the Internet[101]. This does not mean (and no party before the Court suggested) that the Internet is, or should be, a law-free zone. However, in considering what the law, and specifically the common law of Australia, should say in relation to the contents of the Internet, particularly with respect to allegedly defamatory material on a website, the appellant argued that regard had to be taken of these elementary practical features of the technology.

88. Novel features of the Web: The crucial attributes, so it was said, include the explosion in the availability of readily accessible information to hundreds of millions of people everywhere, with the consequent enhancement of human knowledge, and the beneficial contribution to human freedom and access to information about the world's peoples and their diverse lives and viewpoints that the Internet makes available, thereby contributing to human understanding. It was argued that the law should generally facilitate and encourage such advances, not attempt to restrict or impede them by inconsistent and ineffective, or only partly effective, interventions, for fear of interrupting the benefit that the Internet has already brought and the greater benefits that its continued expansion promises.

89. This Court has made reference to the fact that modern development in mass communications and particularly the electronic media may influence the continued relevance or reformulation of established legal principles[102]. The appellant contested the respondent's su

Posted by stern130 at 11:23 AM

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."

Libel action lost because only five people read story

Julia Day
Thursday February 3, 2005

A high court judge today overturned a libel ruling against a newspaper's online operations because technical investigations had shown that only five people in the UK had read the story in question.

The ruling in favour of the Wall Street Journal's American publisher, Dow Jones, has been hailed as a "major development in English law".

Dow Jones' successful appeal related to an original judgment in favour of Saudi businessman Yousef Jameel, who had sued for libel over a story on the Wall Street Journal Online website that falsely linked him to funding al-Qaida.

The high court today accepted Dow Jones' argument that the case was a waste of the court's time because it transpired that only five people had read the article. This is because, unlike printed newspapers, online newspapers can tell how many times any given story has been opened by a remote user.

The proceedings related to a story headlined "War on Terror. List of Early al Qaeda donors points to Saudi elite, charities", which included an interactive link to the so-called list of donors, which included Mr Jameel's name.

Lord Phillips said today there must be a substantial number of hits on a website to merit court action, otherwise proceedings amounted to an abuse of process.

Mr Jameel's lawyers said he began legal proceeding in the belief that the website had between 5,000-6,000 subscribers in the UK, according to Dow Jones' marketing information. It was not until later that it emerged that only five people had looked at the story.
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The Wall Street Journal's lawyer, Mark Stephens, said the ruling has introduced a new substantiality test because it contrasted with a previous ruling in Australia that awarded damages against an online publication even though only nine people had read the article.

The ruling in 2002, brought by mining magnate Joe Gutnick against Barron's magazine (also owned by Dow Jones), was considered significant because it meant an individual could sue in Australia for an article uploaded anywhere in the world.

Lord Phillips said if there was a risk that the defamatory statements might be published on a wider scale then there might be grounds for Mr Jameel to pursue proceeding to get an injunction. But he didn't believe there was a risk in this case.

The ruling may also curtail so-called libel tourism, with foreigners suing in the UK to take advantage of Britain's favourable libel laws, Mr Stephens said.

Lord Phillips asked Mr Jameel's lawyer, James Price QC, why he had sued in the UK and not in the US, where the story was published.

Mr Price confirmed it was because "we obviously face a somewhat tougher legal regime in the US" and because his client was better known in the UK.

Lord Phillips said had Mr Jameel known the story had no significant publication in the UK, he should have sued in the US or elsewhere where more people had read it.

He also "stayed" the case, which means it will never be resurrected and awarded Dow Jones £100,000 in costs.

Andrew Stephenson, Mr Jameel's lawyer, said his client would be reviewing whether to sue Dow Jones in any other country.

The ruling was the second of two appeals today concerning the Jameel family. The Wall Street Journal Europe lost the first appeal against Yousef's brother, Mohammed Jameel.

· To contact the MediaGuardian news desk email editor@mediaguardian.co.uk or phone 020 7239 9857

· If you are writing a comment for publication, please mark clearly "for publication".

Posted by stern130 at 9:10 PM